(navigation image)
Home American Libraries | Canadian Libraries | Universal Library | Community Texts | Project Gutenberg | Children's Library | Biodiversity Heritage Library | Additional Collections
Search: Advanced Search
Anonymous User (login or join us)
Upload
See other formats

Full text of "The Code of Civil Procedure of the State of California"

Google 



This is a digital copy of a book that was preserved for generations on Hbrary shelves before it was carefully scanned by Google as part of a project 

to make the world's books discoverable online. 

It has survived long enough for the copyright to expire and the book to enter the public domain. A public domain book is one that was never subject 

to copyright or whose legal copyright term has expired. Whether a book is in the public domain may vary country to country. Public domain books 

are our gateways to the past, representing a wealth of history, culture and knowledge that's often difficult to discover. 

Marks, notations and other maiginalia present in the original volume will appear in this file - a reminder of this book's long journey from the 

publisher to a library and finally to you. 

Usage guidelines 

Google is proud to partner with libraries to digitize public domain materials and make them widely accessible. Public domain books belong to the 
public and we are merely their custodians. Nevertheless, this work is expensive, so in order to keep providing this resource, we liave taken steps to 
prevent abuse by commercial parties, including placing technical restrictions on automated querying. 
We also ask that you: 

+ Make non-commercial use of the files We designed Google Book Search for use by individuals, and we request that you use these files for 
personal, non-commercial purposes. 

+ Refrain fivm automated querying Do not send automated queries of any sort to Google's system: If you are conducting research on machine 
translation, optical character recognition or other areas where access to a large amount of text is helpful, please contact us. We encourage the 
use of public domain materials for these purposes and may be able to help. 

+ Maintain attributionTht GoogXt "watermark" you see on each file is essential for informing people about this project and helping them find 
additional materials through Google Book Search. Please do not remove it. 

+ Keep it legal Whatever your use, remember that you are responsible for ensuring that what you are doing is legal. Do not assume that just 
because we believe a book is in the public domain for users in the United States, that the work is also in the public domain for users in other 
countries. Whether a book is still in copyright varies from country to country, and we can't offer guidance on whether any specific use of 
any specific book is allowed. Please do not assume that a book's appearance in Google Book Search means it can be used in any manner 
anywhere in the world. Copyright infringement liabili^ can be quite severe. 

About Google Book Search 

Google's mission is to organize the world's information and to make it universally accessible and useful. Google Book Search helps readers 
discover the world's books while helping authors and publishers reach new audiences. You can search through the full text of this book on the web 

at |http : //books . google . com/| 



f 



' /i'-^iJ/'i. A^. Aa/4^, ^H^u't^L-J^I^'i* 



THE 



CODE OF CIVIL PROCEDURE 



or nsM 



STATE 0¥ CALIFOKNIA. 



AXyOTAT£D MY 



CREED HAYMOND AND JOHN C. BURCH, 



CALlfOBNU CODS COHJUaSIOX. 



In T^wo Volumes, 

VOL L 



FIKST EDITION. 



•rf w ** -^ 



SAN FBANGISCO: 

▲. L. BAMOBOFT k OOHPAXT, 731 1£ABSXT 8TBEET. 
gOMNJCB WHITNSY k 00^ 618 CLAT 8TBEET. 

1874. 



c\ 



>* » 



L 9694 
AUG 2 01934 



Entered, according to the Act of Congress, Aagtist 22d, 1872, by 

HAYMOND & CO., 
In the office of the Librarian of Congress, at Washington. 



• ••• 

• • • 

• • • 















• • 






•  fc 



DEDICATION. 



To THE Honorable 

THE SUPREME COURT OP THE STATE OF CALIFORNIA; 

To the decisions of which tribunal the auihora are mainly indebted for the 
greater certainty and correctness of their notes, this Code 

is respectfully inscribed. 



NOTE. 



The List of Abbreviations in Vol. I of The Civil Code must 
be used as an index to the abbreviations in this. 

AUTHORS. 



PREFACE. 



The authors, in presenting this Annotated Edition of The 
Code of Civil Procedure, deem it unnecessaiy to do more than 
to reiterate that their best energies, which the time occupied 
in the work permitted them to exert, have been expended in 
prei)aring references to leading cases on the subject of the 
practice of the laio, and correctly pointing their application by 
copying from the body of the decisions themselves, rather than 
relying upon the imperfect digests which they might have used. 
Many of the annotations were prepared by Cameron II. King, 
Esq., and the authors take pleasure in recognizing the services 
of that gentleman. They avail themselves of the flattering 
reports of the Advisory and Legislative Committees, made 
upon the work when presented, as an indorsement of the cor- 
rectness and utility of the text: 

To His Excellenci/^ Xewton Bootu, Governor of the State of 
California : 

The Advisory Committee on the Revision of the Laws have 
the honor to submit to you, and through you to the Legislature, 
their report upon The Code of Civil Trocedure. 

They have made a careful and critical examination of The 
Code of Civil Procedure prepared by the Revision Commis- 
sion. In doing so they have compared it, section by section, 
with our existing laws, and also with the Codes of some of the 
most populous btates. In the performance of this labor, they 
have constantly consulted with the Commissioners, and suggested 
such amendments as they deemed advisable. 

This Code is divided into Four Parts. Part I treats of Courts 
of justice, their organization, jurisdiction, and terms; of judi- 
cial ofllcers; of jurors, their qualifications and the manner of 
selecting them; of the ministerial officers of a Court of justice, 



Vi PREFACE. 



and of attorneys and counselors at law. Part 11 treats, first, of 
limitations of actions; and, second, of the general practice in 
Courts. Part III treats of special proceedings of a civil nature, 
such as writs of mandate and review, contesting elections, the 
enforcement of liens, eminent domain, and proceedings in Pro- 
bate Courts. Part IV is devoted to evidence. The arrange- 
ment is admirable, and all the subjects are properly included 
and well treated. 

The Title on Evidence is in part new, but in other respects 
the Commission have followed closely existing laws. A change 
has been made in the practice in relation to new trials, but we 
consider this a great improvement. In many instances, where 
the Supreme Court has pointed out defects in the practice, the 
defects have been cured. The Title on Eminent Domain is new 
and valuable. 

We earnestly recommend the passage of the bill prepared by 
the Commission for a Code of Civil Procedure. 

We request your Excellency to transmit a copy of this to the 
Legislature. KespectfuUy submitted. 

CHARLES A. TUTTLE, 
SIDNEY L. JOHNSON. 
Sacramento, February 26, 1872. 



2b ike Honorable the Legislature of the State of California: 

The Joint Committee on Revision, appointed by the Legisla- 
ture to examine The Code op Civil Procedure, Civil and Penal 
Codes, beg leave to make the following report: 

Your committee have carefully examined the bill for a Code 
OF Civil Procedure, prepared by the Revision Commission and 
approved by Messrs. Tuttle and Johnson, the Advisory Board. 
This Code embodies, in a single volume, the laws of this State 
relative to Civil Procedure. 

It bears every evidence of having been prepared with the 
greatest care. 

The matter is arranged in a convenient form, easy of refer- 
ence. 

The only material departure from our present law is in rela- 
tion to the preparation of cases for appeal, or for hearing on 
motion for a, new trial. For the cumbersome system of state- 
ments and counter statements, a system founded upon bills of 
exception has been adopted; the system adopted is contained 
in a few well-drawn sections, which stand out in marked and 
favorable contrast to the present law. Indeed, your committee 
feel confident that there is not a lawyer who has had any expe- 



PREFACE. Vll 

rience in the practice but will say that this change alone, intro 
dacing certainty where all is uncertainty, is worth the whole 
cost of the revision. 

After a careful examination, we give to this Code our unqual- 
ified approval and indorsement, and herewith report it to the 
Legislature and recommend its adoption. 

^* W. W. PENDEGAST, Chairman, 
^ J. T. FARLEY, 

JAMES VAN" NESS, 

A. COMTE, Jiu, 

Senate Committee. 

J C. G. W. FRENCH, Chairman, 
^ F. E. SPENCER, 

Assembly Committee. 

We here, too, take the liberty of inserting the following dis- 
patch, received by the Code Commission on the adoption of the 

Oodes* 

" New York, March 18, 1872. 
"All honor to you for your great work accomplished! It 
will Ve the boast of California that, first of English-speaking 
States, she set the example of written laws as the necessary 
complement of a written Constitution for a free people. 

*' DAVID DUDLEY FIELD." 

In conclusion, we sincerely hope that our labors may be of 

service to the profession. -^ 

CREED HAYMOND, '^ 



Sacbambnto, November 1, 1872. 



JOHN C. BURCH. J 



5 



TSRMS OF THB COURTS. 



§ 
M 

n 



■1= 






»4 
g i 

i 

o 

a. 

H 
O 



P 









e-i.fc S-"^. ^r^^ 

111 iJt Sll 



t!| d tilt; 

II 1 ^^^ 



ti i ■-.-. s 1=1° 
Ti I III I Iffl 

¥. I III 1 15| 

=s I III I |-s^| 

si a sis ^ ==^s 
.11 I JI.I ^ llsi 



£|<| g S g 



illl 




w. 


n 


j 




 i 






III 


Illl 


Ij 


1 


■i-i 


= 1 


IJ 



TERMS OP THE COURTS. 



Jill 



|-5|| 
CCtt 



If! i ^=i!- 



.S|S|£| 

' if. 

lii 



11:3 1 llll i 



lit i^is 



1M ilil 



in 






lllllll 






J ^ 

li 



II 



Si 

i! 

|3 



a I i I i 11 I 

6 — Co, C. Pro.— vol. i. 



RULES OF THE SUPREME COURT. 



ADOPTED OCTOBER 26th, 1872. 



BuLS 1. Admission of attorneys at law. 

2. Filing transcripts, points, and authorities, and service 

thereof. 

3. TVhen appeal may be dismissed for want of filing the 

record, etc. 

4. On motion to dismiss without notice certificate must show 

what. What must be shown on motion with notice. 

5. Transcripts to be printed, and how. 

6. Transcript to be arranged, how. This rule to be strictly 

enforced. 

7. Map or survey, how furnished and referred to. 

8. Transcript, when not to be filed. 

9- Copy of transcript, how served; what is equivalent; costs. 

10. Written transcript, and funds to print, may be transmitted 

to the Clerk. His duty thereon. 

11. Printing, etc., as costs, how taxed. 

12. Errors and defects, how corrected. 

13. Exceptions or objections to any of the proceedings in per- 

fecting the appeal, how taken, and when. 

14. Substitution on the suggestion of death or other disability 

of a party pending appeal, how made. 

15. Calendar, how and when arranged. 

16. Criminal cases to be placed at the head of the calendar. 

17. How other printing to be done. 

18. Number of counsel, and in what time to be heard. 

19. Opinions to be corrected, and then recorded by the Clerk. 

20. Motions for rehearing, how made. Frivolous to incur 

costs, etc. 

21. When remittitur to issue. 

22. OTime of notice of motion, five days. 

23. Certified copy of opinion to accompany remittitur,. 



Xll RULES OP THE SUPREME COURT. 

Rule 24. Transcript and papers, how withdrawn. 
25. Writs of certiorari, when issued. 
^ 26. Costs, to whom chargeable primarily; to be paid, when. 

27. Causes brought on tor hearing, how and when. * 

28. Applications for peremptory writs of mandate, and proceed- 

ings therein. 

29. Applications for alternative writs of mandate, and proceed- 

ings therein. 

30. Preliminary motions in such proceedings heai-d first day of 

the term. 

31. Questions of fact in such proceedings, how disposed of. 

32. Final argument in such cases, when heard. Not ready, to 

be continued till next term. 

33. A peremptory writ of mandate to issue immediately, when 
• awarded. 

34. Proof of ser^'ice of notice, what, and proceedings thereafter. 

35. Dismissal of appeal on stipulation. How entered by Clerk. 

36. Original paper may be required to be produced, when and 

by whom. 

37. Application for prerogative writs to show what, and the real 

parties in interest. 

Admiffiion RuLE 1. Applicants for license to practice as at- 

ofnttoraoys .,, , . , . 

at law. torneys and counselors will be examined in open 
Couil;, on the first day of the term, and on that day 
only. Persons applying for admission otherwise than 
upon examination must personally appear in Court at 
the time the motion for their admission is made. If o 
applicant will be examined unless he shall have filed 
with the Clerk of the Courts on or before the first day 
of the term at which he presents himself for examina- 
tion, a certificate, signed by at least two attorneys of 
the Court, each of whom shall have been regularly 
engaged in practice as such for at least four years 
next theretofore, stating in substance that they have, 
and that each of them has, carefully and diligently 
examined the applicant touching his qualifications in 
point of learning in the law to be admitted to practice; 
that it satisfactorily appeared to them, and each of 
them, upon such examination, that the applicant had 
been engaged in the study of the law for a period of 
time to be named in the certificate, naming the place 



RULES OP THE SUPREME COURT. Xlll 

at which, and the person under whom, if any, such 
study had been prosecuted; that the applicant had, 
during that time, read certain books of law, which 
books shall be enumerated in the certificate; and 
stating any other fact tending to eliow the extent of 
the attaiimients of the applicant, and also, that in their 
opinion the applicant possesses the requisite qualifica- 
tions in point of law learning to entitle him to be 
admitted to practice. 

Note.— See Ex Parte Snellinp:, Oct. Term, 1872, 
cited in note to Sec. 279 of this Code. 

Rule 2. The appellant in a civil action shall, Filing . 

^* ' transcnpts, 

within forty days after the appeal is perfected, and the Juthorities, 
statement on appeal, if there be one, is settled, file the thte^r^^^ 
printed transcript of the record, duly certified to be 
correct by the attorneys of the respective parties, or 
by the Clerk of the Court from which the appeal is 
taken. Within fifteen days thereafter the appellant 
shall serve and file his brief, or his points and authori- 
ties; and within fifteen days thereafter the respondent 
shall serve and file his brie^ or points and authorities; 
and the appellant may, within ten days thereafter, 
serve and file his brief, or points and authorities in 
reply. Written evidence of the service upon the 
adverse party of the transcript and brief, and points 
and authorities, shall be filed therewith. There shall 
also be filed eight copies of the transcript, and of each 
of the briefe and points aad authorities for the Jus- 
tices, Reporter, the State Library, and the San Fran- 
cisco Law Library. The times above limited may be 
extended by stipulation, but shall not be extended by 
the Court, or the order of three Justices, more than 
twenty days; and ^uch extension of time shall be 
granted only upon good cause, shown by afiidavit. No 
briefe or points shall be filed after the cause is sub- 
mitted, unless the Court, of its own motion, shall so 
direct. In criminal actions the written transcript of 



XIV RULES OF THE SUPREME COURT. 

the record shall be prepared as provided by Rule 6, 
and shall be filed within thirty days after the appeal 
is taken. The respective parties shall file their briefe 
or jjoints and authorities as the Court may direct. 

Note. — A Court may Dot, by a rule, deprive one of 
a statutory right. — People vs. McClellan, 31 Cal., p. 103. 
When the rules of the Court below are relied on to 
sustain a point in this Court, the record should disclose 
the rule. This Court is not presumed to know the rules 
of the inferior Courts. — Worden vs. Mendocino Co., 32 
Cal., p. 655. The points relied on to reverse the judg- 
ment should be made in the opening brief. — Hihn vs. 
Curtis, 81 Cal., p. 398. Where briefs are to be filed in 
a specified time, and no briefs are filed, unless the tran- 
script contains assignments of error the judgment will 
be affirmed. — Hickenbotham vs. Monroe, 28 Cal., p. 
489; Hohn vs. Roach et al., 25 Cal., p. 37; Edmondson 
vs. Alameda Co., 24 Cal., p. 349. When no points and 
authorities are furnished by the appellant, the judgment 
will be f^ffirmed without examination. — Hutton vs. Reed 
et als., 25 Cal., p. 483. 

When Rule 3. If the transcript of the record be not filed 

appeal 

may be within the time prescribed, the appeal may be dis- 
fiUngihe^^ missed on motion, with or without notice, during the 
record, etc. gj,^^ week of the term at which the motion is made, 

or at any time afterwards during a term, upon notice 
given. If the transcript, though not filed within the 
time prescribed by the preceding rule, be already 
actually on file at the time the motion is made or 
notice given, that fact shall be a sufficient answer to 
the motion. If a cause b§ dismissed during the first 
week of a term without notice, the dismissal shall be 
 final, unless, upon good cause shown, and upon notice 
to the party obtaining the order of dismissal, it be 
restored during the same term. 

Note. — Under previous rules of the Court on the 
same subject, consult Stack vs. Barnes, 2 Cal., p. 16; 
Haight vs. Gay, 8 Cal., p. 297; Hager vs. Mead, 25 
Cal., p. 699. 

Rule 4. On a motion to dismiss an appeal made 
during the first week of a term, and without notice, 



RULES OP THE SUPREME COURT. XV 

there shall be presented the certificate of the Clerk On motion 

^ to dismiss 

below, under the seal of the Court, certifying the ^^^^^^ 
amount or character of the judgment or order ap- mSSPghow 
pealed from, the date of its rendition, the fact and 
date of the filing of the notice of appeal, together 
with the «foct and date of service thereof on the 
adverse party, and the character of the evidence by 
which said service appears, the fact and date of filing 
the undertaking on appeal, and that the same is in due 
form; the fact and time of the settlement of the state- 
ment on appeal, if there be one, and also that the 
appellant has received a duly certified transcript, or 
that he has not requested the Clerk to certify to a cor- 
rect transcript of the record, or if he has made such 
request, that he has not paid the fees therefor, if the 
same have been demanded. On motion to dismiss an what must 

bo shown 

appeal upon notice given, the defiiult or failure upon ®°t™no55^ 
which the motion is grounded shall be made to appear 
by the moving papers, copies of which shall be served 
with the notice, and which may consist of afiidavits or 
other satisfiictory proof, or the certificate of the Clerk 
below, as to any or all the several matters first above 
mentioned. K an appeal shall have been taken and 
perfected in the form required by statute, and after 
the time limited by law for the taking of such appeal 
had already expired, the opposite party may, under 
the provisions of this rule, move to dismiss such ap- 
peal on that ground, whether the time for filing the 
transcript has expired or not. 

Note. — See Bolander vs. Gentry, decided at April 
tTerm, 1868, not reported. The certificate mttst show 
that the statement had been settled. It is not sufficient 
that it was filed. — Thompson vs. Thornton, January 
Term, 1872. The certificate is defective because it does 
not state whether a statement <m appeal was filed; also 
because it does not state the amount or character of the 
judgment. The recilals in a copy of the undertaking 
on appeal does not supply the omission in the Clerk's 
certificate. The requirements of this rule must be set 



XVI 



KULES OF THE SUPREME COURT. 



Transcripts 
to be 
printed, 
and how. 



out in the certificate, and it is insufficient to show tbem 
by reference to documents on file. — Bennett vs. Ben- 
nett, January Term, 1872. See requirements of this 
rule. — Lewis et a1. vs. Longmaid, same term. 

Rule 5. All transcripts of records in civil cases 
shall be printed on unruled white writing paper, ten 
inches long by seven inches wide, with a margin on 
the outer edge of not less than two inches wide. The 
printed page, exclusive of any marginal note or refer- 
ence, shall be seven inches long and three and one half 
inches wide. The folios, embracing ten lines each, 
shall be numbered from the commencement to the 
end, and the numbering of the folio shall be printed 
on the left margin of the page. Small pica solid is 
the smallest letter and most compact mode of compo- 
sition allowed. 

Rule 6. The pleadings, proceedings, and statement 
shall be chronologically arranged in the transcript, and 
each transcript shall be prefaced with an alphabetical 
index specifying the folio of each separate paper, order, 
or proceeding, and of the testimony of each witness; 
and the transcript shall have at least one blank fly-sheet 
This rule to covcr. The chroTiological arrangement of the several parts 
enforced, of the transcript, and a strict compliance with the other 
requirements of this rule, will be exacted of the appel- 
lant, or party filing the record here, in all cases, by 
the Court, whether objection by the opposite party be 
made or not; and for any feilure or neglect in these 
respects which is found to obstruct the examination of 
the record, the appeal may be dismissed. 



Transcript 
to be 
arranged, 
how. 



Map or 

survey, 

how 

furnished 

and 

referred to. 



Rule 7. Whenever a map or survey forms part of 
the transcript, it shall not be necessary to fiimish more 
than one copy thereof, which shall be annexed to the 
transcript filed with and certified by the Clerk, and 
reference thereto may be made in the other copies. 

Note. — Franklin vs. Goodwin, 81 Cal., p. 458. 



BULES OF THE SUPREME COURT. XVll 

Rule 8. No transcript or other paper or document, Transcript, 

* * * when not 

required to be printed, which fails to conform to the to be filed. 
requirements of these rules, shall be filed by the Clerk. 

Rule 9. Before the printed transcript is filed, a Copy of 

tran8cnpt« 

copy thereof shall be served upon the adverse party, ^^^ 
and if there be more than one adverse party, appear- 
ing by different attorneys, on the attorney of each 
party so appearing. If a party shall present to the what is 
attorney of the adverse party a transcript on appeal, 
and request his certificate that the same is correct, and 
said attorney, upon such request, shall, for a period of 
five days, neglect or refuse to join in such certificate, 
or, if deemed incorrect, shall neglect or refuse, for the 
same time, to serve upon the party making the request 
a written statement of the particulars in which the 
transcript is incorrect; or, upoQ the presentation of the 
transcript corrected in the particulars thus specified, 
shall still neglect or refuse, for a period of two days, 
to join in such certificate, the costs of procuring the Costs^ 
certificate to such transcript of the Clerk of the Court 
from which the appeal is taken shall be taxed against 
the party whose attorney so neglects or refuses. 

Note.— See Estate of Boyd, 25 Cal., p, 512* 

Rule 10. The written transcript, authenticated in Written 
the mode prescribed by Rule 9, together with suf- and funds* 
ficient funds to pay the expenses of printing the same, SMsmlt- 
may be transmitted to the Clerk of this Court. The ci^rk/*'** 
Clerk, upon the receipt thereof, shall cause the tran- thlreonT 
script to be printed, and to a printed copy shall annex 
his certificate that the 'said printed transcript is a full 
and correct copy of the transcript furnished to him by 
the party; and said certificate shall be prima facie 
evidence that the same is connect. The said printed 
copy so certified shall be filed, and constitute the 
record of the cause in this Court. Printed copies 

c — Co. C. Pro. — ^vol. i. 



XVlll 



RULES OF THE SUPREME COURT. 



Printing, 
etc., as 
costs, how 
taxed. 



Errors and 
defects, 
how 
corrected. 



Exceptions 
orobaec- 
tions to any 
of the pro- 
ceedini^ in 
perfecting 
the appeal, 
how talcen, 
find when. 



thereof shall be furnished as provided in Rule 2, and 
the Clerk shall also immediately transmit, by mail or 
express, copies to the attorneys of the adverse parties, 
and note such service on the original. 

Rule 11. The expense of printing transcripts on 
appeal, and pleadings, affidavits, or other papei's con- 
stituting the record in original proceedings upon which 
the case is heard in this Court, required by these rules 
to be panted, shall be allowed as costs, and taxed in 
bills of costs in the usual mode. 

Rule 12. For the purpose of correcting any error 
or defect in the transcript, either party may suggest 
the same in writing, and, upon good cause shown, 
obtain an order that the proper Clerk certify to this 
Court the whole or part of the record, as may be 
required, or may prodtice the same, duly certified, 
without such order. If the attorney or counsel of the 
adverse party be absent, or the fact of the alleged 
error or defect be disputed, the suggestion may be 
accompanied by an affidavit showing the existence of 
the error or defect alleged. 

Note.— Wftkeman vs. Coleman, 28 Cal.,p. 58; Hihn 
vs. Curtis, 31 Cal., p. 398. 

Rule 13. Exceptions or objections to the tran- 
script, statement, the bond, or undertaking on appeal, 
the notice of appeal, or to its service, or any technical 
exception or objection to the record affecting the right 
of the appellant to be heard on the points of error as- 
signed, which might be cured on suggestion of dimi- 
nution of the record, must be taken and noted in the 
printed points of the respondent required to be filed 
and served imder Rule 2, or they will not be regai'ded; 
and when so noted, it shall be the duty of tjie appel- 
lant to present and file at the hearing of the cause 
such additional record, certificate, or other matter, if 
such there be, to remove or answer the objection or 



RUIiBS OF THE SUPREME COURT. XIX 

exception so taken; othei'wise such objection or excep- 
tion, if well taken, shall prevail. 

Note.— See Lynch vs. Dunn, 34 Cal., p. 518; Solo- 
mon v«. Kcese, 34 Cal., p. 28. Respondent's objections 
are not waived by their failing to take an exception to 
the transcript, according to this rule. — See opinion in 
Todd vs. Winants, 36 Cal., p. 131, in explanation. 

Rule 14. Upon the death or other disability of a Substita- 

tioD on tho 

party pending an appeal, his representative shall be 8ug|ostion 

substituted in the suit, by suggestion in writing, on the SisaWifty 

part of such representative, or of any party on the peifdFng*'^ 

record. Upon the entiy of such suggestion, an order Sow^made. 
of substitution shall be made, and the cause shall pro- 
ceed as in other cases. 

Note.— Black vs. Shaw, 20 Cal., p. 68; S. & L. 
Society vs. Gibb, 31 Cal., p. 609. 

Rule 15. One week before the commencement of calendar, 

how and 

the term, the Clerk shall place on the calendar all when 

* , arranged. 

causes which have been continued from the previous 
temi; also, all causes in which the transcripts have 
been filed and the briefe or points and authorities of 
both parties have been filed, and the briefs or points 
and authorities in reply have been filed or waived, or 
the time for filing the same has expired. Causes in 
which the transcripts and the briefs or points and 
authorities of both parties have been filed, may be 
placed on the calendar on the stipulation of the par- 
ties. Causes may bo placed on the calendar on the 
motion of either party — five days notice of the motion 
being given — when the opposite party has failed to 
file tlie transcript, or his brief or points and authori- 
ties, as prescribed by Rule 2. When the transcript in 
a criminal cause is filed, after the calendar is made 
up, the cause may be placed thereon by consent, or on 
the motion of the defendant. 

Note. — ^A cause will not be placed on the calendar 
in accordance with the stipulation of the parties, except 
on compliance with this rule. The transcript, briefs. 



EULBS OP THE SUPREME COURT. 



Criminal 
oases to be 
placed at 
tho head 
of the 
calendar. * 



How other 
printing to 
be done. 



Number of 
counsel, 
and in 
what time 
to be 
heard. 



Opiniona 
to be 
corrected 
and then 
recorded 
by the 
Clerk. 

Motions for 
rehearing, 
how made. 



or points and authorities of both parties must bo filed 
before the Court will permit the cause to be placed 
upon the calendar on the stipulation of the parties. 
These facts must be shown when the motion is made. — 
Plant vs. Smythe (No. 3150), January Term, 1872. 
Except (m good cause shown the position of a cause 
on the calendar, set by the Clerk, will not be changed, 
either on stipulation or motion of either party. — "Wet- 
more vs. San Francisco (No. 2945), January Term, 1872. 

Rule 16. Criminal causes shall be placed at the 
head of the calendar, and other causes shall be arranged 
on the calendar as the Chief Justice or the Court may 
direct. 

Rule 17. In all cases where a paper or document 
is required by these rules to be printed, it shall be 
printed upon similar paper and in the same style and 
form (except the numbering of the folios in the mar- 
gin) as is prescribed for the printing of transcripts. 

Rule 18. No more than two counsel on a side will 
be heard upon the argument, except in peculiar and 
important cases; but each defendant who has ajDpeared 
separately in the Court below, may be heard through 
his own counsel. The counsel for each party will be 
allowed only one hour, unless an extension of time be 
obtained from the Court, beforq the argument is com- 
menced. 

Note. — See note to Rule 1, ante. 

Rule 19. All opinions delivered by the Court, after 
having been finally corrected, shall be recorded by the 
Clerk. 

Rule 20. All motions for rehearing shall be upon 
petition, which, in civil cases, shall be printed. The 
petition must be filed within twenty-five days after the 
judgment has been rendered. The time herein pre- 
scribed shall not be extended by the Court, and the 
Clerk shall not file a petition after such time has ex- 
pired. The petition shall operate as a stay of proceed- 



RULES OF THE SUPRBME COURT. XXI 

ings until it has been determined. When it appears Frivoioua 

to incur 

that a petition has been filed for delay only, or is Mvo- costs, etc. 
lous, the Court may impose such costs and damages as 
may be deemed proper. 

Note. — This CJourt may direct a rehearing at any 
time before the remittitur has been sent to and filed in 
the Clerk's office of the Court below. — Grogan & Lent 
vs. Rockle, 1 Cal., p. 193. Behearings will not be 
granted with the same indulgence as formerly. — An- 
drews vs. Mok. Hill Co., 7 Cal., p. 330. What cannot 
be urged as error for the first time on a petition for 
rehearing.— -Payne & Dewey vs. Tread well, 16 Cal., p. 
220. An extension of the time prescribed by the rules 
of thiB Court for filing a petition for a rehearing will not 
be granted, when. — Ferris vs. Coover, 10 Cal., p. 589, 
When a rehearing will be granted on application, with- 
out reference to the merits of the case. — Patterson vs. 
Ely, 18 Cal., p. 28. " A modification of the judgment, 
if made at all, is after a rehearing is granted. — Argenti 
vs. City of San Francisco, 30 Cal., p. 458. These plain 
and positive provisions cannot be avoided upon the 
ground? of accident or excusable neglect. The filing 
of a petition for a rehearing is not a matter of right; it 
is a privilege given by t;he Court, governed and limited 
entirely by its rules. They are authorized by statute, 
and are construed as statutes are construed. — Hanson ' 
vs. McCue (No. 2578), January Term, 1872. 



remittitur 



Rule 21. No remittitur shall issue until after the when, 
expiration of twenty-five days from the entry of the toissu^ 
judgment or order, unless upon the order of the Court, 
or of three of the Justices. 

Note. — There is no power to grant a stay of proceed- 
in/^s on a judgment until an application can be made to 
some Justice of the Supreme Court of the United 
States to issue a citation on a writ of error. — Greely vs. 
Townsend et al., 25 Cal., p. 614. 

Rule 22. In all cases where notice of a motion is Timo of 
necessary, unless for good cause shown the time is motion, 
shortened by an order of one of the Justices, the notice 
ghall be five days, if the attorney upon whom service 
is to be made resides north of an east and west line 
drawn one hundred and twenty-five miles south of Sac- 






XXll RULES OF THE SUPREME COURT. 

ramento, and south of a similar line dmwn at the same 
distance north of Sacramento; and ten days, if such 
attorney reside without said limits. 

Certified RuLE 23. Wlicu a judgment is reversed or modi- 

opmionto fied, a Certified copy of the opinion in the case, if 

accompany ^ *' ^ 

' remitutur. there be any, shall be transmitted, with the remittitur, 
to the Couii: below. 

Transcript EuLE 24. No paper shall be taken from the Court 

and papers, 

tow ^^ room or Clerk's office, except by order of the Court, 
or of one of the Justices. No order will be made for 
leave to withdraw a transcript for examination, except 
upon written consent, to be filed with the Clerk. 

Write of, JluLB 25. . Writs of certiorari may be issued by the 

certiorari i 

slued. Clerk, upon the order of the Court, on the filing of a 
petition therefor, and shall be returnable in thirty days. 

Costo, to Rule 26. When causes are placed upon the calen- 

whom . , ^ 

chargeable dar parties shall be pnmarily liable for costs as fol- 

$runarily. * i ./ 

^0 be paid, lowg. igt. If by the appellant, he shall first be liable; 

2d. If by the respondent, or by consent, then both par- 
ties. Li civil cases the Clerk shall not be required to 
remit the final papers until the costs are paid. 

Causes RuLE 27. All causcs reo^ularly on the calendar 

brought on •• i i o •/ 

how and°*^' may be brought to a hearing by either party when 
when. called in their order on the day for which they are 
set, or as soon thereafter as they may be reached in 
the regular call, without further notice than is con- 
tained in the apportionment of the calendar by the 
Clerk. When the appellant has failed to file the tran- 
script, as provided by Rule 2, and the cause is put on 
the calendar on the motion of the respondent, the 
appeal will be dismissed or judgment affirmed, in the 
discretion of the Court, on motion of respondent. 

Rule 28. All applications to this Court for peremp- 
tory writs of mandate must be noticed for- the first day 



RULES OP THE SUPREME COURT. XXlll 

of the tenn. The notice shall require the respondent AppUca- 

'' tionsfor 

to serve and file his answer within the time hereinaf- peremptory 

writs of 

ter specified, and notify him that if he fails to answer S^d^pJi?' 
within the time prescribed, the application will be theroff 
heard on the moving papera on the first day of the 
next term. The notice of the application, together 
with a copy of the affidavit and other papers upon 
which the application will be based, shall be served 
on the respondent at least twenty days before the said 
first day of the term, unless the Court or one of the 
Justices shall shorten the time. As soon as practica- 
ble after such service, the said notice, afiidavit, and 
other papers, together with the evidence of service, 
shall be filed by the applicant with the Clerk of this 
Court. Within the time mentioned in the notice the 
respondent shall file his answer and serve a copy thereof 
on the applicant or his attorney. 

Rule 29. When the application is for an alterna- Applica- 
tive writ, the affidavit upon which the application is alternative 
made shall be filed with the Clerk before the issuing JJ,^"*^^* 
of the writ, and a copy of the same shall be served thereFa" 
with the writ. The writ shall command the party to 
do the act required to be performed, or show cause 
why he has not done so, by filing his answer thereto , 
within the time specified in said writ, as hereinafter 
provided; and shall notify the respondent that on fail- 
ure so to do the application for the peremptory writ 
will be heard on the papers of the moving party, on 
the first day of the next succeeding term, or upon such 
day in term as may be appointed by the Court, when 
a special return day has been inserted by order of 
Court. The return day specified in the writ shall be 
twenty days after service of a copy of the writ and 
affidavit; or, if the Court appoint a special return day, 
then the day so appointed. Within the time so desig- 
nated for the return of said writ, the respondent shall 



XXIV RULES OF THE SUPREME COURT. 

either do Ijie act required to be performed or file with 
the Clerk his answer to the writ and affidavit, and serve 
a copy thereof on the applicant. 

Preiimi- RuLE 30. In procee'dinffs relating to writs of man- 

TOch pro^ date, preliminary motions necessary to be disposed of, 

hoardSrst before the cause is placed upon the calendar for final 

tern? * argument, will be heard on the first day of the term. 

• 

©"foetus? Rule 31. If, in such proceedings, an answer be 
ceedrngT ^^^^ which raiscs an issue of fact, essential to the de- 
disposed o£ termination of the application, the question of fact 
will be directed to be tried by* a jury, before some 
District Court, to be designated in the order, or where 
the parties so agree, by a referee; and the argument 
will' be postponed till the verdict or finding upon such 
issue of fact shall be duly certified to this Court. 

Final EjJLE 32. The final argument in proceedings for 

argament . . . 

inauch writs of mandate, whether upon questions of law aris- 

caaes. when ' ^ ^ 

heard. Jug upon the papers in the case or upon the facts as 

found by a jury or referee, will be heard on Tuesday of 

the second week of the term. A calendar of such 

causes will be made out for that day, upon which the 

Clerk will place all applications for mandate ready for 

Notreadj^ final hearing. All applications for writs of mandate 

continued not ready for hearing on said day (unless for special 

term. rcasous Otherwise dii'ected), will be continued to the 

next succeeding term of the Court. 

io^yrSt^ Rule 33. When a peremptory writ of mandate is 

of mandate ti.iii- • ti 

toisaue awarded it shall issue immediately, unless stayed by 
awardwL sp^^ial order of the Court. 

Proof of Rule 34. The proof of service of notice and affida- 

flervice of 

what^nd ^^®' ^^ ^^* ^^^ affidavits, shall be the same a« the 
FngB**^' proof of service of summons in civil cases. After the 
thereafter, p^^^j.^ ^r^j j^g^ passcd, upon filing due proof of service 



BULES OF THE SUPREME COURT. XXV 

of notice and affidavits in an application for a peremp- 
tory mandate, or of the affidavits and alternative writ, 
when the alternative writ has been issued, as provided 
by these rules, and that no answer has been served and 
filed as herein provided; upon application of the mov- 
ing party, the Clerk shall place the cause upon the 

• 

calendar for hearing, on the first day of the term, or 
such other day as may be specially appointed by the 
Court, upon the papers of the applicant; and the appli- 
cation shall be heard upon such papers, unless the 
Court, upon motion on notice and affidavits, shall 
relieve the respondent from his default, on the ground 
of mistake, inadvertence, surprise, or excusable neg- 
lect, and permit an answer to be filed. 

Rule 35. An appeal or writ of error may be dis- DismiiMai 

. , of appeal 

missed at any time, upon and in accordance with the on 

•' ' r- stipulation* 

written stipulation of the attorneys of record of the 
respective parties; and upon and in accordance with How 
such stipulation, the Clerk shall enter such dismissal, by ciork. 
and the remittitur shall issue thereon in accordance 
with the terms of said stipulation. 

BuLE 36. When the inspection of an original paper original 
which was offered in evidence in the Court below is berequired 

to DO 

shown to be necessary to a correct decision of the ^h^^n ^nd' 
appeal, the Court may order the Clerk of the Court ^y^^<^°*- 
below to transmit such original paper, if in his posses- 
sion, to the Clerk of this Court; and if such paper be 
in the possession of a party to the action, he may pro- 
duce the same on the hearing of the cause, or he may, 
upon motion and notice of the adverse party, be 
required to produce such paper on the hearing of the 
cause; and ii\ default thereof the Court will intend the 
paper to be in all respects as alleged by the opposite 
party. 

« 

d — Co. C. Pro. — ^voL 1. 



XXVI RULES OP THE SUPREME COURT. 

Appiica- Rule 37. If any application made to the Court for 

wriuto^^^ a writ of mandamus, certiorari, prohibition, proce- 
MdUhe^**' dendo, or for any prerogative writ to be issued in the 
inintereat. cxcrcise of its Original jurisdiction, and for which an 
application might have been lawfully made to some 
other Court in the first instance, the affida\dt or peti- 
tion shall, in addition to the necessary matter requisite 
by the rules of law to support the application, also set 
forth the circumstances which, in the opinion of the 
applicant, render it proper that the writ should issue 
.originally from this Court, and not from such other 
Court — the sufficiency or insufficiency of which cir- 
cumstances so set forth in that behalf will be deter- 
mined bj'' the Com't in awarding or refusing the appli- 
cation. In case any Court, Judge, or other officer, or 
any Board or other tribunal, in the discharge of duties 
of a public character, be named in the application as 
respondent, the affidavit or petition shall also disclose 
the name or names of the real party or parties, if any, 
in interest, or whose interest would be directly affected 
by the proceedings, and in such case it shall be the 
duty of the applicant obtaining an order for any such 
writ to serve or cause to be served upon such party or 
parties in interest a true copy of the affidavit or peti- 
tion and of the writ issued thereon, in like manner as 
the same is required to be served upon the respondent 
named in the application and proceedings, and to pro- 
duce and file in the office of the Clerk of this Court 
the like evidence of such service. 



It is ordered that the foregoing rules be and the 
same are hereby adopted; that they shall take effect 
on the first Monday of Januaiy, eighteen hundred and 



RULES OP THE SUPREME COURT. XX^ll 

seventy-tliree; and that thereupon all former rules be 
abrogated. 

WALLACE, C. J., 

CROCKETT, J., 

RHODES, J., 

NILES, J., 

BELCHER, J. 
October 25th, 1872. 

Note. — Counsel may procure copies of the Rules of 
this Court on application to the Clerk of the Court or 
the Secretary of the Justices. — Lewis et al. vs. Long- 
luaid, January Term, 1872. 



Oaliforota Code CoMMissioiJf. 



CREED HAYMOND, Ch'rm. 
JOHN C. BUECH. 
JOHK H. McKTOTE. 



ADVISORY COMMITTEE 



Hon. CHAELBS A. TUTTLE. 
Hon. SIDNEY L. JOHNSON. 



Secbetaribs: 



f CAMEKON H. KING. 
1 WILL J. BEATTY. 



LEGISLATIVE COMMITTEE. 



JOINT COMMITTEE. 



8enate, 
W. W. PENDEGAST, Ch'rm, 
JAMES VAN NESS, 
A. COMTE, Jr., 
JAMES T. FARLEY. 



AssemMy, 
C. G. W. FRENCH, Ck'nu. 
F. E. SPENCER, 
A. D. SPLIVALO. 



ANALYSIS OF THE CONTENTS 



DIVISIONS. 

Part I. OF COURTS OP JUSTICE. ^ 

II. OF CIVIL ACTIONS. 

III. OF SPECIAL PROCEEDINGS OF A CIVIL NATURE. 

IV. OF EVIDENCE. 



Sectiok 1. Title and division of this volume 8 



PEELIMLN"AET PEOTISIOlfrS. 

Sbctiox 2. When this Code takes effect 6 

3. Not retroactive 6 

4. Rule of construction of this Code 6 

5. Provisions similar to existing laws, how construed 7 

6. Tenure of offices preserved « 7 

7. Construction of repeal as to certain officers 7 

8. Actions, etc., not affected by this Code 8 

9. Liimitations shall continue to run : 8 

10. Holidays 8 

11. Same 9 

12. Computation of time 9 

13. Certain acts not to be done on holidays 9 

14. **SeaP' defined 9 

15. Joint authority 10 

16. Words and phrases 10 

17. Certain terms used in this Code defined , 10 

18. Statutes, etc., inconsistent with Code repealed » 12 

19. This Act, how cited, enumerated, etc 12 

20. Judicial remedies defined 13 

21. Division of judicial remedies 13 



XXX CONTENTS. 

Section 22. Action deflned 13 

23. Special proceeding defined 15 

24. Division of actions 16 

25. Civil actions arise out of obligations or injuries 16 

26. Obligation defined 16 

27. Division of injuries 16 

28. Injuries to property 16 

29. Injuries to the person 16 

SO. Civil action, by whom prosecuted ^ 16 

31. Criminal actions 16 

32. Civil and criminal remedies not mers:ed 16 



Pj^HT I. 

OF COURTS OF JUSTICE. 



TITLE I. 

OF THEIR ORGANIZATION, JURISDICTION, AND TERMS. 

Chapter I. Of Courts of justice in general 19 

II. Of the Court for the trial of impeachments 34 

III. Of^the Supreme Court 35 

IV. Of the District Courts 52 

V. Of the County Courts 71 

VI. Of the Probate Courts 88 

VII. Of the Municipal Criminal Court of San Francisco 98 

VIII. Of Justices* Courts : 101 

IX. Of Police Courts 107 

X. General provisions respecting Courts of justice 107 

• • CHAPTER I. 

COURTS OP JUSTICE IN GENERAL. 

Section 33. The several Courts of this State 19 

34. Courts of record 34 

CHAPTER 11. 

OP THE COURT FOR THE TRIAL OF IMPEACHMENTS. 

Sectiok 35. Members of the Court 34 

36. Jurisdiction 34 



CONTENTS. XXXI 

Section 37. Officers of the Court 34 

38. Trial of impeachments provided for in Penal Code 34 

CHAPTER m. 



OF THE SUPREME COURT. 



• 



Sectiok 40. Members of the Court 36 

41. Chief Jlistice 35 

42. Jurisdiction of two kinds 36 

43. Orio^inal jurisdiction.^ , 36 

44. Appellate jurisdiction 38 

45. May reverse, affirm, or modify, etc., remittitur 49 

46. Number of Judges necessary for the transaction of business 60 

47. Number to pronounce judgment 50 

48. Court always open for certain purposes 51 

• 49. Terms, when held. Additional terras 51 

60, Terms, where held 51 

CHAPTER IV. 

OF THE DISTRICT COURTS. 

Section 54. Judicial districts 53 

55. Court in each district 53 

56. Judges, election and terms of. 53 

§7. Jurisdiction 53 

58. Terms of Court in the First District 64 

59. Second District 64 

60. Third District 64 

61. Fourth District : 64 

62. Fifth Distnct i 65 

63. Sixth District 65 

64. Seventh District 65 

65. Eighth District 66 

66. Ninth District 66 

67. Tenth District 67 

68. Eleventh District 67 

69. Twelfth District 67 

70. Thirteenth District 68 

71. Fourteenth District .'. 68 

72. Fifteenth District 69 

73. Sixteenth District 69 

74. Seventeenth District. 69 

75. Terms of the District Court, where held 71 

76. Duration of terms 71 

77. Adjournment of the Court 71 

78. Judgments may be entered in vacation 71 



XXXll CONTENTS. 

CHAPTER ,V. 

OF THE COUNTY COURTS. 

Sectiok 82. Court in each county 72 

83. Judges election and terms of 72 

84. Jurisdiction of two kinds 72 

85. Original jurisdictioh 73 

86. Appellate jurisdiction 81 

87. Presumptions in favor of judgments, etc 82 

88. Terms of the County Court for the respective counties 83 

89. Court always open for certain purposes 87 

90. Terms of the County Court, where held 87 

CHAPTER VI. 

« 

OP THE PROBATE COURT. 

Sjection 94. Court in each county , 88 

95. Judges of. 88 

96. Judge of, in San Francisco 88 

97. Jurisdiction of. 88 

98. Presumptions in favor of its judgments 94 

99. Terms of the Court in the respective counties 95 

100. Terms, where held 98 

CHAPTER VII. 



\ 



OF THE MUNICIPAL CRIMINAL COURT OF BAN FRANCISCO. 

Section 104. This Court continued v 98 

105. Judge, election and term 98 

106. Jurisdiction 99 

107. Presumptions in favor of its judgments 99 

108. Terms of Court 99 

109. Where held 99 

110. Officers and salaries 99 



CHAPTER Vm. 

OF justices' COURTS. 

Section 112. Justices of the Peace must hold 101 

118. Justices, election and term 101 

114. Civil jurisdiction 101 

115. Civil jurisdiction restricted 104 



• • • 



CONTENTS. XXXIU 

Sicnoir 116. Territorial extent of civil jurisdiction 106 

117. Criminal jurisdiction 106 

118. Courts, where held and when open 107 

CHAPTER IX. 

* OP POLICE COURTS. 

I 

Skctiok 121. Organization, etc., provided for in Political Code 107 

CHAPTER X. 

GBXERAL PROVISIONS RESPECTING COURTS OP JUSTICE. 

Article 1. Publicity of their proceedings 106 

XI. Incidental powers and duties of Courts 106 

III. Judicial days 109 

IV. Proceedings when Judges do not attend to hold a Court 110 

V. Particular provisions respecting the places of holding the Courts 

of justice Ill 

V 1. Seals of the Courts of justice 112 

. 
ARTICLIE I. 

PUBLICITY OF THE PHOCEBDINGS OF THE COURTS OF JUSTICE. 

Sectiok 124. Sittings puhlic 108 

125. Limitation on preceding section 108 

ARTICLE II. 

INCIDENTAL POWEBS AND DUTIES OP COURTS. 

SscTi02f 128. Powers of Court respecting the conduct of judicial proceedings.. 108 

129. Courts of record may make rules 109 

130. When rules take effect 109 

ARTICLE ni. 

JUDICIAL DATS. 

SscTiON 133. Days on which Courts, etc., may be held 110 

134. Days on which Courts shall not be opened 110 

135. Court appointed, etc., for those days, deemed for next day 110 

ARTICLE IV. 

FBOCEEDIKOS WHEN JUDGES DO NOT ATTEND TO HOLD A COURT. 

Skctiok 139. Adjournment of Court for absence of Judge 110 

140. Same Ill 

e — Co. C. Pro. — vol. i. 



XXXIV CONTENTS. 



ARTICLE V. 

FASTICX7LAS PBOTISIONS SS8PECTII70 THE PLACES OF H0LDI17G THE COITSTB OT 

JUSTICE. 

Sectioi^ 142. Jud^e may, in certain cases, change place of holding Court... Ill 

148. Parties to appear at place appointed Ill 

144. Booms, etc., when Judge may order Ill 

ARTICLE VL 

SEALS 07 THE COURTS OF JUSTICE. 

Section 147. "What Courts have seals 112 

148. Present seals to continue 112 

149. Seals for Courts not now provided with 112 

150. Private seal to he used, when 113 

151. Seals, by whom kept 113 

152. To what proceedings to be affixed 113 



TITLE II. 

OF JUDICIAL OFFICERS. 

Chaptsk I. Of judicial officers in general 114 

II. Of the powers and duties of Judges at chambers 116 

III. Particular disqualification of Judges 119 

lY. Incidental pow^ers and duties of judicial officers 120 

Y. Miscellaneous provisions respecting Courts and judicial officers.. 122 

CHAPTER I. 

OP JUDICIAL OFFICERS IN GENERAL. 

Sectiok 156. Qualifications, as to residence, of Justices of Supreme Court... 114 

157. Qualifications, as to residence, of District Judges 114 

158. Places of residence of Judges 115 

159. Residence in San Francisco construed 115 

160. District Judges may hold Courts in another district 115 

161. County and Probate Judges may hold Court in another county.. 115 

162. County or Probate Judge who may hold term in another county, 

how designated 116 



CONTENTS. XXXV 

CHAPTER 11. 

OF THE POWERS AND DUTIES OF JUDGES AT CHAMBERS. 

Section 165. Powers of Justices of Supreme Court at chambers 116 

166. Powers of District and County Judges at chambers 116 

167. Powers of Probate Judges at chambers 116 

CHAPTER HL 

PARTICULAR DISQUALIFICATION OF JUDGES. 

Sectiox 170. "When disqualified 119 

171. Not to act as attorney in his own Court 120 

172. Certain Judges not to act as attorneys 120 

173. No judicial officer to have a partner , 120 

CHAPTER IV. 

INCIDENTAL POWERS AND DUTIES OF JUDICIAL OFFICERS. 

Section 176. General powers of Judges out of Court 121 

177. Powers of judicial officers as to conduct of proceedings before 

them ;. 121 

178. Same 121 

179. Same ? 121 

CHAPTER V. 

MISCELLANEOUS PROVISIONS RESPECTING COURTS AND JUDICIAL 

OFFICERS. 

SscnoN 182. Subsequent applications for orders, when prohibited 122 

183. Violation of last section 122 

184. No proceeding affected by a vacancy in office of Judge, etc 122 

185. Proceedings to be in the English language, except in certain 

counties 122 

186. Abbreviations and figures 123 

187. Means to be used to execute judicial powers in certain cases 123 



TITLE III. 

OF PERSONS SPECIALLY INVESTED WITH POWERS OF A JUDI- 
CIAL NATURE. 

Chaftkb I. Of jurors 123 



XXXVl CONTENTS. 

Chapter II. Of Court Commiseioners 137 

CHAPTER I. 

OP JURORS. 

Abticle I. Jurors in general 124 

II. Qualifications and exemptions of jurors > 125 

III. Manner of selecting and returning jurors for Courts of record 128 

IV. Time and manner of drawing jurors for Courts of record 130 

Y. Manner of summoning jurors for Courts of record 132 

VI. Manner of summoning jurors for Courts not of record 134 

VII. Manner of summoning juries of inquest 135 

VIII. Obedience to summons, how enforced 135 

IX. Of impaneling a Grand Jury 135 

X. Of impaneling trial jury in Courts of record 136 

2LI. Of impaneling a trial jury in Courts not of record 137 

XII. Of impaneling juries of inquest 137 

ARTICLE I. 

JTIR0R8 IN GENSBAL. 

Section 190. Jury defined 124 

191. Different kinds of juries 124 

192. Grand Jury defined 124 

193. Trial juiy defined... 124 

194. Number of a trial jury 125 

195. Jury of inquest defined 125 

ARTICLE II. 

QUALIFICATIONS AND EXEMPTIONS OP JimORS. 

Section 198. Who are competent to act as jurors 125 

199. Who are not competent to act as jurors 127 

200. Who are exempt 127 

201. Who may be excused 127 

ARTICLE III. 

MANNEB OF SELECTING AND RETURNING JURORS FOR COURTS OF RECORD. 

Section 204. List of persons to serve as jurors to be made by Supervisors 128 

205. How selection shall be made 129 

206. List to contain one name for every hundred inhabitants 129 

207. Person who served as juror during preceding year not to be 

selected 129 

208. List to be placed with Clerk 129 

209. Duty of Clerk on receiving lists 129 

210. Eegular jurors to serve one year] 130 



CONTENTS. XXXVll 

AETTCLE IV. 

TIME AND MANNEB OF DRAWING JUROBS FOR COURTS OF RECORD. 

Sectiok 214. Jury to be drawn upon the order of the Judge ISO 

215. Clerk to notify County Judge and Sheriff of time of drawing 130 

216. Sheriff and Judge to witness drawing 131 

217. Drawing, when to be adjourned 181 

218. Shall proceed, when 131 

219. Drawing, how conducted 131 

220. After adjournment of Court, disposition to be made of ballots.. 132 

221. Copy of list to be furnished by Clerk ^ 132 

AETICLE V. 

MANNER OF SUMMONING JURORS FOR COURTS OF RECORD. 

Section 225. Sheriff to summon jurors, how 132 

226. Court may order jury drawn, when 133 

227. When jury may be completed from the body of the county^ 134 

ARTICLE VI. 

MANNER OF SUMMONING JURORS FOR COURTS NOT OF RECORD. 

Section 230. Jurors for Police and Justices' Courts, by whom summoned 134 

231. How summoned 134 

232. Officer's return 135 

ARTICLE VIT. 

MANNER OF SUMMONING JURIES OF INQUEST. 

SBcnoN235. How summoned 135 

ARTICLE VIII. 

OBEDIENCE TO SUMMONS, HOW ENFORCED. 

Section 238. Obedience to summons, how enforced 135 

ARTICLE IX. 

OF IMPANELING A GRAND JURY. 

SEcnoN 241. Grand Jury, when to be impaneled 136 

242. Grand Jury, how constituted 136 

243. Jury to be impaneled a^ prescribed in Penal Code 136 



XXXVlll CONTENTS. 

ARTICLE X. 

OIP IMPAKELn^O TRIAL JUBY IK COURTS OF RECORD. 

Section 246. Clerk to call ligt of jurors summoned, etc 136 

247. Jury to be impaneled as prescribed in Part II 186 

ARTICLE XI. 

OF IMPANELING A TRIAL JURY IN COURTS NOT OF RECORD. 

Section 250. Proceedings in forming jury in Courts not of record 187 

251. How impaneled * 137 

ARTICLE XII. 

OF IMPANELING JURIES OF INQUEST. 

Section 264. Mode and manner of impaneling 137 

CHAPTER n. 

OP COURT COMMISSIONERS. 

Section 258. Court Commissioners, how appointed 138 

259. Powers of Court Commissioners 138 



TITLE IV. 

OF THE MINISTERIAL OFFICERS OF THE COURTS OF JUSTICE. 

Chapter I. Of ministerial officers generally 139 

II. Of the Secretary and Bailiff of the Supreme Court 140 

III. Of Phonographic Reporters 140 

CHAPTER I. 

OP MINISTERIAL OFFICERS GENERALLY. 
Section 262. Election, powers and duties, where prescribed 139 

CHAPTER n. 

OF THE SECRETARY AND BAILIFF OF THE SUPREME COURT. 

Section 265. Justices may appoint 140 

266. Tenure and duties 140 



r 



CONTENTS. XXXIX 

CHAPTER m. 

OF PHONOGRAPHIC REPORTERS. 

Section 269. How appointed, and duty 140 

270. Beport prima facie correct 141 

271. Compensation 141 



TITLE V. 

OP PERSONS SPECIALLY INVESTED WITH MINISTERIAL 
POWERS RELATING TO COURTS OP JUSTICE. 

Chaptkb I. Attorneys and counselors at law 142 

II. Of other persons invested with such powers 158 

CHAPTER I. 

ATTORNEYS AND COUNSELORS AT LAW. 

SscnoK 275. Who may be admitted as attorneys 142 

276. Qualifications 143 

277. Certificate of admission. License 143 

278. Oath 144 

279. Attorneys of other States 144 

280. Roll of attorneys 145 

281. Penalty for practicing without license 145 

282. General duties 145 

283. Authority of attorney 152 

I 284. Change of attorney 153 

285. Notice of change 155 

286. Death or removal of attorney 155 

287. Removal and suspension 155 

288. Conviction of felony. Moral turpitude 156 

289. Proceedings for removal or suspension 157 

290. Accusation 157 

291. Verification 157 

292. Citation to answer 157 

293. Appearance 157 

294. How to answer 157 

295. Demurrer 157 

296. Answer 158 

297. Trial 158 

298. Reference 158 

299. Judgment 158 



Xl CONTENTS. 

CHAPTER n. 

OF OTHER PERSONS INVESTED WITH SUCH POWERS. 
SxGnoN304. Receivers and guardians 158 



P-A.IIT II. 

OF CIVIL ACTIONS. 



TITLE I. 

OP THE FORM OP CIVIL ACTIONS. 

Section 307. One form of civil action only 161 

308. Parties to actions, how designated 161 

809. Special issues not made by pleadings, how tried 161 



TITLE II. 

OF THE TIME OF COMMENCING CIVIL ACTIONS. 

Chapter I. The time of commencing actions in general 162 

II. The time of commencing actions for the recovery of real prop* 

erty 176 

III. The time of commencing actions other than for the recovery 

of real property 188 

IV. General provisions as to the time of commencing actions 196 

CHAPTER L 

THE TIME OF COMMENCING ACTIONS IN GENERAL. 
Section 812. Commencement of civil actions 162 

CHAPTER n. 

THE TIME OF COMMENCING ACTIONS FOR THE RECOVERY OP REAL 

PROPERTY. 

Section 815. When the people will not sue 176 

816. When action cannot be brought by grantee from the State 176 



CONTENTS. Xli 

SscnoN 317. When actions by the people or their grantees are to be brought 

within five years 176 

818. Seizin within five years, when necessary in action for real 

property 176 

319. Such seizin, when necossaiy in action or defense arising out of 

title to or rents of real property 179 

320. Entry on real estate 180 

321. Possession, when presumed. Occupation deemed under legal 

title, unless adverse 181 

322. Occupation under written instrument or judgment, when deemed 

adverse 181 

323. What constitutes adverse possession under written instrument 

or judgment 185 

324. Premises actually occupied under claim of title deemed to be 

held adversely 186 

325. What constitutes adverse possession under claim of title not 

written 186 

326. Relation of landlord and tenant as affecting adverse possession.. 186 

327. Right of possession not affected by descent cast 187 

328. Certain disabilities excluded from time to commence actions 187 

CHAPTER ni. 

THE TIME OF COMMENCING ACTIONS OTHER THAN FOR THE 

RECOVERY OF REAL PROPERTY. 

Sectiok 335. Periods of limitation prescribed 188 

336. Within five years ; 188 

337. Within four years 189 

338. Within three years 192 

339. Within two years 198 

340. Within one year 194 

341. Within six months 195 

342. Same 195 

343. Actions for relief not hereinbefore provided for 195 

344. Where cause of action accrues on mutual account 196 

345. Actions by the people subject to the limitations of this Chapter 197 

346. Action to redeem a mortgage without account of rents and profits 197 

347. Same, when there are two or more such mortgages 197 

CHAPTER IV. 

eSKEBAL PROVISIONS AS TO THE TIME OF COMMENCINS ACTIONS. 

I 

Skctiok 350. When an action is commenced 198 

351. Exception, where defendant is out of the State 198 

/ — Co. C. Pro. — vol. i. 



Xlii CONTENTS. 

SscTiOK 352. Exception, as to persons under disabilities 199 

353. Provision where person entitled dies before limitation expires 199 

354. In suits by aliens, time of war to be deducted 200 

355. Provision where judgment has been reversed 200 

356. Provision where action is stayed by ipjunction 200 

857. Disability must exist when right of action accrued 200 

358. When two or more disabilities exist, etc 201 

359. This Title not applicable to actions against Directors, etc. Lim- 

itations in such cases prescribed 201 

360. Acknowledgment or new promise must be ini writing 201 

361. Limitation laws of other States, effect of. 203 

362. Existing causes of action not affected 204 

363. Word "action'* construed, how 204 



TITLE III. 

OP THE PARTIES TO CIVIL ACTIONS. 

Section 867. Action to be in name of party in interest 205 

368. Assignment of thing in action not to pr^udice defense 212 

369. Executor, trustee, etc., may sue without joining the persons 

beneficially interested 214 

870. When a married woman is a party, actions by and against 216 

371. Wife may defend, when 220 

372. Infant to appear by guardian 220 

373. Guardian, how appointed 222 

374. Unmarried female may sue for her own seduction 223 

375. Father, etc., may sue for seduction of daughter, etc 223 

376. Father, etc., may sue for death or injury of child 223 

377. When representatives may sue for death of one caused by the 

wrongful act of another 224 

378. Who may be joined as plaintiffs 224 

379. Who may be joined as defendants 234 

380. Parties defendant in an action to determine conflicting claims 

to real property 241 

381. Parties holding title under a common source, when may join 241 

382. Parties in interest, when to be joined. When one or more may 

sue or defend for the whole 242 

383. Plaintiff may sue in one action the different parties to commer- 

cial paper 244 

884. Tenants in common, etc., may sever in bringing or defending 

^ actions 246 

385. Action, when not to abate by death, marriage, or other disabil- 

ity. Proceedings in such case 246 

386. Another person may be substituted for the defendant 249 

387. Intervention, when it takes place, and how made 250 

388. Associates may be sued by name of association 253 



CONTENTS. Xliii 

SxcnoK 389. Court, when to decide controversy or to order other parties to he 

hrought in 254 



TITLE IV. 

OF THE PLACE OP TRIAL OF CIVIL ACTIONS. 

Skction 392. Certain actions to he tried where the suhject or some part thereof 

is situated 256 

393. Other actions, where the cause or some part thereof arose 258. 

394. Place of trial of actions ag^ainst counties 258 

395. Other actions, according to the residence of the parties 259 

396. Action may he tried in any county, unless the defendant demand 

a trial in the proper county 259 

397. Place of trial may he changed in certain cases 260 

396. When Judge is dibqualified, cause to he transferred 266 

399. Papers to he transmitted. Costs, etc. Jurisdiction, etc 266 

400. Proceedings after judgment in certain cases transferred 267 



TITLE Y. 

OF THE MANNER OP COMMENCING CIVIL ACTIONS. 

Skctiok 405. Actions, ^ow commenced 267 

406. Complaint, how indorsed. When summons may he issued, and 

how waived 268 

407. Summons, how issued, directed, and what to contain 272 

408. Alias summons 275 

409. Notice of the pendency of an action affecting the title to real 

property.... 275 

410. Summons, how served and returned 281 

411. Summons, how served 283 

412. Puhlication when defendant is ahsent from the State, concealed, 

or a foreign corporation having no agent, etc 285 

413. Manner of puhlication and appointment of attorney 290 

414. Proceedings where there are several defendants and part only 

are served 295 

415. Proof of service, how made 300 

416. When jurisdiction of action acquired 311 



TITLE VI. 

OF THE PLEADINGS IN CIVIL ACTIONS. 

_ • 

C^AFTEB I. The pleadings in general 313 

II. The complaint 314 



Xliv . CONTENTB. 

Chaptbb III. Demurrer to the complaint 348 

IV. The answer ; 354 

y. Demurrer to answer 389 

VI. Verification of pleadings 391 

VII. Greneral rules of pleading 395 

VIII. Variance — mistakes in pleadings and amendments 404 

CHAPTER I. 

THE PLEADINGS IN GENERAL. 

Section 420. Definition of pleadings 313 

421. This Code prescribes the form and rules of pleadings 313 

422. What pleadings are allowed 313 

CHAPTER II. 

THE COMPLAINT. 

Section 425. Complaint, first pleading 314 

426. Complaint, what to contain 314 

427. What causes of action may be joined 846 

CHAPTER ni. 

DEMURRER TO THE COMPLAINT. 



« 



Section 430. When defendant may demur 348 

431. Demurrer must specify, etc. May be taken to part. May answer 
and demur at same time ., 353 

432. What proceedings are to be had when complaint is amended.... 353 

433. Objection not appearing on complaint, may be taken by answer.. 354 

434. Objections, when deemed waived 354 

CHAPTER IV. 

THE ANSWER. 

Section 437. Answer, what to contain 355 

438. W^hen counter claim may be set up 377 

! 439. When defendant omits to set up counter claim 887 

440. Counter claim not barred by death or assignment 887 

441. Answer may contain several grounds of defense. Defendant 

may answer part and demur to part of complaint 887 



CONTENTS. Xlv 

CHAPTER V. 

DEMURRER TO ANSWER. 

Section 443. When plaintiff may demur to answer ....f 389 

444. GroundB of demurrer. 390 

CHAPTER VI. 

VERIFICATION OF PLEADINGS. 

SjEcnoN 446. Verification of pleadings 392 

^ 447. Copy of written instrument contained in complaint admitted, 

unless answer is verified 894 

448. When defense is foimded on written instrument set out in an- 

swer, its execution admitted, unless denied by plaintiff under 
oath 394 

449. Exceptions to rules prescribed by two preceding sections 395 

CHAPTER YJI. 

GENERAL RULES OF PLEADING. 

Sscnosr 452. Pleadings to be liberally construed 895 

453. Sham and irrelevant answers, etc., maybe stricken out 396 

454. How to state an account in pleadings 397 

455. Description of real property in a pleading 399 

456. Judgments, how pleaded 399 

457. Conditions precedent, how to be pleaded 400 

458. Statute of Limitations, how pleaded 401 

459. Private statutes, how pleaded 402 

460. Libel and slander, how stated in complaint. Not necessary to 

allege or prove special damages 402 

461. Answer in such cases 402 

462. Allegations not denied, when to be deemed true. When to be 

deemed controverted 403 

463. A material allegation defined 403 

464. Supplemental complaint and answer 403 

465. Pleadings subsequent to complaint must be filed and served 404 

CHAPTER VHL 

VARIANCE — MISTAKES IN PLEADINGS AND AMENDMENTS. 

SxcnoK 469. Material variance, how provided for 404 

470. Immaterial variance, bow provided for 405 



Xlvi * CONTENTS. 

Section 471. What not to be deemed a variance 405 

472. Amendments of course, and effect of demurrer 405 

473. Amendments by the Court. Enlarging time to plead and re- 

lieving from judgments, etc 406 

474. Suing a party by a fictitious name, when allowed 416 

475. No error or •defect to be regarded unless it affects substantial 

rights 416 



TITLE VII. 

OF THE PROVISIONAL REMEDIES IN CIVIL ACTIONS. 

Chapter I. Arrest and bail «•• 417 

II. Claim and delivery of personal property 429 

III. Injunction 441 

IV. Attachment 465 

V. Receivers ~ 488 

VI. Deposit in Court 4»3 

CHAPTER I. 

ARREST AND BAIL. 

Section 478. No person to be arrested except as prescribed by this Code 417 

479. Cases in which defendant may bo arrested 418 

480. Order for arrest, by whom made 420 

481. Affidavit to obtain order, what to contain ^ 420 

482. Security by plaintiff before order.of arrest 421 

483. Order, when made, and its form 421 

484. Affidavit and order to be delivered to the Sheriff, and copy to 

defendant 422 

485. Arrest, how made 422 

486. Defendant to be discharged on bail or deposit 423 

487. Bail, how given 423 

488. Surrender of defendant 423 

489. Same 424 

490. Bail, how proceeded against 424 

491. Bail, how exonerated 425 

492. Delivery of undertaking to plaintiff, and its acceptance or rejec- 

tion by him 425 

493. Notice of justification. New undertaking, if other bail 425 

494. Qualification of bail 428 

495. Justification of bail 426 

496. Allowance of bail 426 

497. Deposit of money with Sheriff. 427 

498. Payment of money into Court by Sheriff. 427 

499. Substituting bail for deposit 427 



CONTENTS. xlvii 

Szcnox 500. Money deposited, how applied or disposed of. ..*•• 428 

501. Sheriff, when liable as bail, and his discharge from liability 428 

502. Proceedings on judgment against Sheriff. 428 

503. Motion to vacate order of arrest or reduce bail. Affidavits on 

motion^ 428 

504. When the order vacated or bail reduced . 429 



CHAPTER II. 

CLAIM AND DELIVERY OF PERSONAL PROPERTY. 

SxcnoK 509. Delivery of personal property, when it may be claimed 430 

510. Affidavit and its requisites 485 

511. Requisition to Sheriff to take and deliver the property 436 

512. Security on the part of the plaintiff, and proceedings in serving 

the order 486 

513. Exception to sureties and proceedings thereon, or on failure to 

except 438 

514. Defendant, when entitled to redelivery 438 

515. Justification of defendant's sureties 439 

516. Qualification of sureties 440 

517. Property, how taken when concealed in building or inclosure 440 

518. Property, how kept 440 

519. Claim of property by third person 440 

520. Notice and affidavit, when and where to be filed 441 

521. Actions on undertakings 441 

CHAPTER ni. 

INJUNCTION. 

Sucmoix 525. Injunction, what is, and who may grant it 442 

526. When it may be granted 443 

527. At what time it may be granted, and what is req lired to obtain it 457 

528. Iigunction after answer 459 

529. Security upon injunction 459 

530. Order to show cause why injunction should not be granted 461 

531. Injunction to suspend business of a corporation, how and by 

whom granted 462 

532. Motion to vacate or modify injunction 462 

533. When to be vacated or modified 465 

CHAPTER IV. 

ATTACHMENT. 

SxcTiON 637. Attachment, when and in what cases may issue 466 

638. Affidavit for attachment, what to contain 469 



Xlviii CONTENTS. 

Section 539. Undertaking on attachment 470 

540. Writ, to whom directed and "what to state 472 

541. Shares of stock and debts due defendant, how attached and dis- 

posed of. 472 

542. How real and personal property shall be attached 473 

543. Attorney to give written instructions to Sheriff what to attach... 478 

544. Garnishment, when garnishee liable to plaintiff. 478 

545. Citation to garnishee to appear before a Court or Judge 480 

546. Inventory, how made. Party refusing to give memorandum 

may be compelled to pay costs 482 

547. Perishable property, how sold. Accounts without suit to be 

collected.*. .*. 483 

548. Property attached may be sold as under execution, if the in- 

terests of the parties require 483 

549. When property claimed by a third party, how tried 483 

550. If plaintiff obtains judgment, how satisfied 484 

551. When there remains a balance due, how collected 484 

552. When suits may be commenced on the undertaking 485 

553. If defendant recover judgment, what the Sheriff is to deliver... 485 

554. Proceedings to release attachment, before whom taken 485 

555. Attachment, in what cases it may be released and upon what 

terms 486 

556. When a motion to discharge attachment may be made, and upon 

what grounds 487 

557. When motion made on affidavit, it may be opposed by affidavit 488 

558. When writ must be discharged 488 

559. When writ to be returned 488 

CHAPTER V. 

RECEIVERS. 

Skction 564. Appointment of Receiver 489 

565. Appointment of Receivers upon dissolution of corporations 492 

566. Who shall not be appointed 492 

567. Oath and undertaking 492 

568. Powers of Receivers 492 

569. Investment of funds 493 

CHAPTER VI. 

DEPOSIT IN COURT. 

Section 572. Deposit in Court.., 498 

673. Money paid to Clerk must be deposited with County Treasurer.. 494 

574. Manner of enforcing the order 494 



CONTENTS. Xlix 

TITLE VIII. 

OP THE TRIAL AND JUDGMENT IN CIVIL ACTIONS. 

Ohaptbr I. Judgment in general •••• 405 

II. Judgment upon failure to answer 510 

III. Issues — the mode of trial and postponements 515 

IV. Trial by jury 525 

V. Trial by the Court 549 

VI. Of references and trials by referees 557 

VII. Provisions relating to trials in general • 565 

VIII. The manner of giving and entering judgment 577 

CHAPTER I. 

JUDGMENT IN GENERAL. 

SicnoH 577. Judgment defined ...., 485 

578. Judgment may be for or against one of the parties 602 

579. Judgment may be against one party and action proceed as 

to others 504 

580. The relief to be awarded to the plaintiff. 504 

581. Action may be dismissed or nonsuit entered 505 

582. All other judgments are on the merits 510 

CHAPTER n. 

JUDGMENT UPON FAILURE TO ANSWER. 

SicnoK 585. In what cases judgment may be had upon the failure of the 

defendant to answer 510 

CHAPTER m. 

ISSUES — ^THB MODE OP TRIAL AND POSTPONEMENTS. 

Sicnoiii 588. Issue defined, and the different kinds ...w^ 5I& 

689. Issue of law, how raised ^«... 515. 

580. Issue of fact, how raised ^^^.. 515^ 

591. Issue of law, how tried ». 516> 

592. Issue of fact, how tried. When issues both of law and fact, the 

former to be first disposed of. '. .»..« ......^... S1& 

593. Qerk must enter causes on the calendar, to remain until disposed 

of. 5ia 

594. Parties may bring issue to trial 518 

595. Motion to postpone a trial for absence of testimony, requisites of 518 

596. In cases of adjournment a party may have the testimony of 

any witness taken 522 

g — Co. C, Pro. — vol. i. 



1 CONTENTS, 

CHAPTER IV. 

TRIAL BY JT7RY. 

Abticlx I. Formation of juiy 523 

n. Conduct of the trial 527 

III. The verdict 542 

ARTICLE I. 

70BJCATI0K OF THS JITBT. 

Section 600. Jury, how drawn 523 

601. Challenges. Each party entitled to four peremptory challenf^s 523 

602. Grounds of challenge , 524 

603. Challenges, how tried 526 

604. Jury to he sworn 526 

ARTICLE It. 

COKDUCT or THE TBIAL. 

SXCTIOK 607. Order of proceeding on trial 527 

606. Charge to the jury. Court must fUmish in writing, upon re* 

quest, the points of law contained therein 528 

609. Special instructions 538 

610. View hy juiy of the premises 538 

611. Admonition when jury permitted to separate 538 

612. Jury may take with them certain papers 539 

613. Deliberation of jury, how conducted 539 

614. May come into Court for further instructions 539 

615. Proceedings in case a juror become sick 540 

616. When prevented from giving verdict, the cause may be again 

tried 540 

617. While juiy are absent, Court may adjourn from time to time. 

Sealed verdict. Final adjournment discharges the jury 540 

618. Verdict, how declared. Form of. Polling the jury 541 

610. Proceedings when verdict is informal 641 

I 

ARTICLE III. 

THE VEEDICT. 

Section 624. General and si>ecial verdicts defined ; 642 

625. When a general or special verdict may be rendered 547 

626. Verdict in actions for recoveiy of money or on establishing 

counter claim 547 

627. Verdict in actions for the recovery of specific personal property 548 

628. Entry of verdict 548 



CONTENTS. li 

CHAPTER V. 

TRIAL BY THE COURT. 

Sectiox 631. When and how trial by jury may be waived 549 

632. Upon trial by Court deci.'^ion to be in writing and filed within 

twenty days 550 

033. Facts found and conclusions of law must be separately stated. 

Judgment on 650 

634.* Findinga may be waived, how 552 

635. Finding, how prepared 552 

d30. Proceedingd after determination of issue of law 557 

CHAPTER VI. 

OF REFERENCES AND TRIALS BY REFEREES. 

Section 638. Reference ordered upon agreement of parties, in what cases 557 

639. Reference ordered on motion, in what cases 559 

640. Number of referees, qualifications, etc 560 

641. Either party may object. Grounds of objection 560 

642. Objections, how disposed of. 561 

643. Referees to report within ten days.. 561 

644. Effe'jt of referee's finding.. 562 

645. How excepted to, etc 562 

CHAPTER VII. 

PROVISIONS RELATING TO TRIALS IN GENERAL. 

Abticlib I. Exceptions 665 

II. New trials 569 

ARTICLE I. 

KXCEPTIONS. 

SiCTioir 646. Exceptions may be taken. Time when taken, etc 565 

647. What deemed excepted to 567 

648. Exception, form of. 567 

649. Exceptions signed by Judge and filed with Clerk 568 

650. Exceptions not presented at time of ruling. Notice to adverse 

I>arty, how settled upon, etc 568 

651. Exceptions after judgment, etc 568 

662. When exception is refused, application to Supreme Court to 

prove the same, etc 568 

653. ProceedioKs where Judge ceases to hold office 569 



Bi CONTENTS. 



ARTICLE n. 

NEW TRIALS. 

Sectiok 666. New trial defined 569 

657. When a new trial may be granted 569 

658. On what papers moved for 575 

659. Notice of *motion, upon whom served and what to contain 575 

660. Motion to be heard at the time specified, or dismissed 576 

661. Judge to make statement on decision of the motion. This 

statement to constitute bill of exception 576 

CHAPTER Vin. 

THE MANNER OP GIVING AND ENTERING JUDGMENT. 

Section 664. Judgment to be entered in twenty-four hours, etc 678 

665. Case may be brought before the Court for argument ~ 578 

666. When counter claim established exceeds plaintiff's demand 578 

667. In replevin, judgment to be in the alternative, and with dam- 

ages. Grold coin or currency judgment 578 

668. Judgment book to be kept by the Clerk 588 

669. If a party die after verdict, judgment may be entered, but not 

to be a lien 588 

670. Judgment roll, what to constitute 688 

671. Judgment lien, when it begins and when it expires 589 

672. Docket, how kept, and what to contain 596 

678. Docket to be open for insi)ection without charge 596 

674. Transcript to be filed in any county, and judgment to become 

a lien there 597 

675. Satisfaction of a judgment, how made 697 



TITLE IX. 

OF THE EXECUTION OF THE JUDGMENT IN CIVIL ACTIONS. 

Chapteb I. The execution 598 

II. Proceedings supplemental to the execution 639 



CHAPTER I. 

THE EXECUTION. 

SBCTI017 681. Within what time execution may issue «... «....«... 600 

682. Who may issue the execution, its form, to whom directed, and 

what it shall require.. 600 



CONTENTS. . liii 

Sscnoir 683, When made returnable 603 

684. Money judgments and others, how enforced 605 

685. Execulton after five years 605 

686. When execution may issue against the property x)f a party after 

hisdcAth 606 

687. Execution, how and to Avhom issued 606 

688. What shall be liable to be seized in execution. Not to be 

affected till a levy is made 606 

689. When property is claimed by a third party, how the right of 

property is tried 610 

600. What exempt from execution 613 

691. Writ, how executed 618 

682. Notice of sale under execution, how given 621 

693. Selling without notice, what penalty attached 621 

694. Sales, how conducted. Neither the officer conducting it nor his 

deputy to be a purchaser. Beal and personal property how 
sold. Judgment debtor, if present, may direct order of sale 
and the officer shall follow his directions 622 

695. If purchaser refuses to pay purchase money, what proceedings... 623 

696. Court of justice may proceed in a summary manner against a 

purchaser refusing to pay. Officer may refuse such purcha- 
ser's bid after 624 

697. These two sections not to make officer liable beyond a certain 

amount 624 

698. Personal property not capable of manual delivery, how delivered 

to purchaser 625 

699. Personal property not capable of manual delivery, how sold and 

delivered 625 

700. Real property, when absolute sale or not. In the latter case, 

what the certificate must contain 626 

701* Real property so sold, by whom it may be redeemed 628 

702. When it may be redeemed, and redemption money 630 

703. When judgment debtor or other redemptioner may redeem 632 

7(H. In cases of redemption, to whom the judgments are to be made 634 

705. What a redemptioner must do in order to redeem 635 

706. Until the expiration of redemption time Court may restrain 

waste on the property. What considered waste .' 635 

707. Rents and profits 636 

708. If purchaser of real property be evicted for irregularities in 

sale, what he may recover, and from whom. When judgment 
to be revived. Petition for the purpose, how and by whom 
made 638 

709. Party who pays more than his share may compel contribution.. 638 



]xy • CONTENTS. 

CHAPTER 11. ^ 

PROCEEDINGS SUPPLEMENTARY TO THE EXECUTION. 

'Section 714. Debtor required to ansv/er concerning his property, ^vhen 639 

715. Proceedings to compel debtor to appear. In what cases he may 

be arrested. What bail may be ;;iven 643 

716. Any debtor of the judgment debtor may pay the latter's creditor 644 

717. Examination of debtors of judgment debtor, or of tho^e haying 

property belonging to him 644 

718. Witness required to testify.... 645 

719. Judge may order property to be applied on execution 645 

720. Proceedings upon claim of another party to property, or on 

denial of indebtedness to judgment debtor 645 

721. Disobedience of orders, how punished 646 



TITLE X. 

ACTIONS IN PARTICULAR CASES. 

Chapter I. Actions for the foreclosure of mortgager 647 

II. Actions for nuisance, waste, and willful trespass, in certain cases, 

on real property 654 

III. Actions to determine conflicting churns to real property, and 

other provisions relating to actions concerning i*eal estate 663 

IV. Actions for the partition of real property 669 

V. Actions for the usurpation of an office or franchise • 687 

yi. Of actions against steamers, vessels, and boats 691 

CHAPTER I. 

ACTIONS FOR THE FORBCLOSIJRE OF MORTGAGES. 

Sbctiok 726. Proceedlnpjs in foreclosure suit? 647 

727. Surplus money to be depoe^ited in Court 653 

728. Proceedings when debt secured falb due at difTerent times 654 

CHAPTER II. 

ACTIONS FOR NUISANCE, WASTE, AND WILLFUL TRESPASS, IN CERTAIN 

CASES, ON REAL PROPERTY. 

Section 731. Nuisance defined, and actions for 654 

732. Waste, actions for 661 

733. Trespass for cutting or carrying away trees, etc., actions for 662 



CONTENTS. Iv 

Sxcnov 734. Measure of damages in oertain cases under the last section 602 

736. Damages in actions for forcible entry, etc., may be trebled 662 

CHAPTER in. 

ACTIONS TO DETERMINE CONFLICTING CLAIMS TO REAL PROPERTY, 
AND OTHER PROVISIONS RELATING TO ACTIONS CONCERNING 
REAL ESTATE. 



* 



Sxcnoiv 738. Parties to an action to quiet title 668 

739. "When plaintiff cannot recover costs 664 

740. If plaintiff's title terminates pending the suit, what he may re- 

cover, and how verdict and judgment to be 664 

741. When value of improvements can be allowed as a set-off. 665 

742. An order may be made to allow a party to survey and measure 

the land in dispute 665 

743. Order, what to contain and how served. If unnecessary iijury 

done, the party surveying to be liable therefor 666 

744. A mortgage must not be deemed a conveyance, whatever its 

terms , 666 

745. When Court may grant injunction; during foreclosure; after sale 

on execution, before conveyance 666 

746. Damages may be recovered fo^ injury to the possession after sale 

and before deliveiy of possession 666 

747. Action not to be prejudiced by alienation, pending suit 667 

748. Mining claims, actions concerning to be governed by local rules 667 

CHAPTER IV. 

ACTIONS FOR THE PARTITION OF REAL PROPERTY. 

SiEcnoK 752. Who may bring actions for partition 670 

753. Interests of all parties must be set forth in the complaint. 672 

754. Lienholders not of record need not be made parties 673 

755. Plaintiff must file notice of lis pendens 678 

756. Summons must be directed to all persons interested in the prop- 

erty 673 

757. Unknown parties may be served by publication 674 

758. Answer of defendants, what to contain 674 

759. The rights of all parties may be ascertained in the action 674 

760. Partial partition 675 

761. Lienholders must be made parties, or a referee be appointed to 

ascertain their rights 675 

762. Lienholders must be notified to appear before the referee ap- ^ 

pointed 676 

763. The Court may order a sale or partition and appoint referees 

therefor 676 



Ivi CONTENTS. 

Section 764. Partition must be made according to the rights of the parties, 

as determined by the Court 677 

765. Beferees must make a report of their proceedings 677 

766. The Court may set aside or affirm report, and enter judgment 

thereon. Upon whom judgment to be conclusive 677 

767. Judgment not to aflTect tenants for years to the whole property 678 

768. Expenses of partition must be apportioned among the parties.... 678 

769. A lien on an undivided interest of any party is a charge only on 

the share assigned to such party 679 

770. Estate for life or years may be set off in a part of the property 

not sold, whtfn not all sold 679 

771. Application of proceeds of saje of incumbered property 679 

772. Party holding other securities may be required first to exhaust 

them 679 

773. Proceeds of sale, disposition of. 680 

774. "When paid into Court the cause may be continued for the deter- 

mination of the claims of the parties 680 

775. Sales by referees must be at public auction «. 680 

776. The Court must direct the terms of sale or credit 680 

777. Beferees may take securities for purchase m6ney 681 

778. Tenants whose estate has ^een sold shall receive compensation 681 

779. The Court may fix such compensation 681 

780. The Court must protect tenants unknown 681 

781. The Court must ascertain and secure the value of future contin- 

gent or vested interests 681 

782. Terms of sale must be made known at the time. Lots must be 

sold separately 682 

788. Who may not be purchasers 682 

784. Referees must make a report of the sale to the Court 682 

785. If confirmed, conveyances may bo executed 682 

786. Proceeding if a lienholder become a purchaser 682 

787. Conveyances must be recorded, and will be a bar against parties 683 

788. Proceeds of sale belonging to parties unknown must be invested 

for their benefit : 683 

789. Investment must be made in the name of the Clerk of the county 683 

790. When the interests of the parties are ascertained, securities must 

be taken in their names 683 

791. Duties of the Clerk making investments 684 

792. When unequal partition is ordered, compensation may be ad- 

judged in certain cases 684 

793. The share of an infant may be paid to his guardian 684 

794. The guardian of an insane person may receive the proceeds of 

such party's interest 684 

795. A guardian may consent to partition without action, and exe- 

<» cute releases 685 

796. Costs of partition a lien upon the shares of the parceners 685 

797. The Court, by consent, may appoint a single referee..! 685 

798. Apportionftient of counsel fees and expenses 686 



^ 



CONTENTS. Ivii 

Sbctiok 790. Abstract of title 688 

800. Same 687 

801. Interest on disbursements 687 

CHAPTER V. 

ACTIONS FOR THE USURPATION OF AN OFFICE OR FRANCHISE. 

Section 802. Certain writs abolished 688 

803. Action may be brought against any party usurping, etc., any 

office or franchise..^ 688 

804. Name of person entitled to office may be set forth in the com- 

plaint. If fees have been received by the usurper, he may be 
arrested 689 

805. Judgment may determine the rights of both incumbent and 

claimant '. 690 

806. When rendered in favor of applicant... 690 

807. Damages may be recovered by successful applicant 690 

808. When several persons claim the same office their rights may be 

determined by a single action 691 

809. If defendant found guilty, what judgment to be rendered against 

him 691 

CHAPTER VI. 

OF ACTIONS AGAINST STEAMERS, VESSELS, AND BOATS. 

Skction 813. When vessels, etc., are liable. Their liabilities constitute liens 692 

814. Actions may be brought directly against such vessels, etc 695 

815. Compkint must be verified 695 

816. Summons may be served on the master, mate, etc 695 

817. Plaintiff may have such vessel, etc., attached 695 

818. The Clerk must issue the writ of attachment i 696 

819. Such writ must be directed to the Sheriff. Sheriff may release 

upon sufficient undertaking 696 

820. Sheriff must execute such writ without delay 696 

821. The owner, master, etc., may appear and defend such vessel 697 

822. Proceedings in actions Imder this Chapter 697 

823. After appearance attachment may, on motion, be discharged 697 

824. When not discharged, such vessel, etc., may be sold at public 

auction. Application of proceeds 697 

825. Mariners and others may assert their claim for wages, notwith- 

standing prior attachment. How enforced 698 

826. Proof of the claims of mariners and others 699 

827. Sheriff's notice of sale to contain measurement, tonnage, etc 699 

h — Co. C. Pro. — ^vol. 1. 



Iviii CONTENTS. 

TITLE XI. 

OP PROCEEDINGS IN JUSTICES' COURTS. 

Chapteb I. Place of trial of actions in Justices' C'Ourts 700 

II. Manner of commencing actions in Justices' Courts 704 

, III. Pleadings in Justices' Courts 706 

ly. Provisional remedies in Justices' Courts 711 

V. Judgment by default in Justices' Courts 716 

VI. Time of trial and postponements in Justices' Courts 717 

VII. Trials injustices' Courts 719 

VIII. Judgments (other than by default) in Justices' Courts 721 

IX. Executions from Justices Courts...'. 726 

X. Contempts in Justices' Courts 727 

XI. Dockets of Justices 729 

XII. General provisions relating to Justices' Courts 783 

CHAPTER L 



» 



PLACE OP TRIAL OF ACTIONS IN JUSTICES COURTS. 

Section 832. Action, in what township or city may be commenced 700 

833. Place of trial may be changed in certain cases 702 

834. Limitation on the right to change. 702 

835. To what Court transferred 703 

836. Proceedings after order changing place of trial 703 

837. Effect of an order changing place of trial 703 

838. Transfer of cases to the District Court 703 



CHAPTER 11. 

MANNER OF COMMENCING ACTIONS IN JUSTICES* COURTS. 

Sbgtiok 839. Actions, how commenced 704 

840. Summons may issue within a year 705 

841. Defendant may waive summons 705 

842. Parties may appear in person or by attorney 705 

843. When guardian necessaiy, how appointed 705 

844. Summons, how issued, directed, and what to contain 705 

845. Time for appearance of defendant 706 

846. Alias summons... 706 

847. Same 707 

848. Summons, limitation upon time of service 707 

849. Summons, by whom and how served and returned 707 

850. Hour for appearance 707 



CONTENTS. lix 

CHAPTER m. 

PLEADINGS IN JUSTICES* COUBTS. 

SxcTiox 851. Form of pleadings 708 

852. Pleadings in Justices* Courts 709 

853. Complaint defined i 709 

854. When demurrer to complaint may be put in 709 

855. Answer J 709 

856. If the defendant omits to set up counter claim 710 

857. When plaintiff may demur to answer 710 

858. Proceedings on demurrer 710 

I 859. Amendment of pleadings 711 

I 800. Answer or demurrer to amended pleadings 711 

I 

I CHAPTER IV. 

j 

j PROVISIONAL REMEDIES IN JUSTICES* COURTS. 



ArticLiE I. Arrest and bail 712 

II. Attachment 713 

III. Claim and delivery of personal property 715 

ARTICLE I. 

ARREST AND BAIL. 

Smcnon 861. Order of arrest, and arrest of defendant 712 

862. Affidavit and underttikin? for order of arrest 712 

863. A defendant arrested must be taken before the Justice imme- 

diately 718 

864. The officer must give notice to the plaintiff of arrest 713 

865. The officer must detain the defendant. 713 

ARTICLE II. 

ATTACHMENT. 

Section 866. Writ of attachment shall issue upon affidavit 714 

867. Undertaking on attachment must be required .'. 714 

868. Writ of attachment, substance of. Officer may take an under- 

taking instead of levying 714 

869. Certain provisions apply to all attachments in Justices' Courts... 715 

ARTICLE III. 

CLAIM AND DELIVERY OF PERSONAL PROPERTY. 

Skction 870. How claim and delivery enforced 715 



Ix ^ CONTENTS. 

CHAPTER V. 

JUDGMENT BY DEFAULT IN JUSTICES' COURTS. 

Section 871. Judji^ment when defendant fkils to appear 716 

872. Judgment against defendant on demurrer 716 

CHAPTER VI. 

TIME OP TRIAL AND POSTPONEMENTS IN JUSTICES* COURTS. 

Section 873. Time when trial must be commenced 717 

874. When Court may, of its own motion, postpone trial 717 

875. Postponement by consent 717 

876. Postponement upon application of a party 717 

877. No continuance for more than ten days to be granted, unless 

upon filing of undertaking 719 

CHAPTER Vn. 



f 



TRIALS IN JUSTICES COURTS. 

Section 878. Issue defined and the dififerent kinds 719 

879. Issue of law, how raised » 719 

880. Issueoffect, how raised 720 

881. Issue of law, how tried 720 

882. Issue of fact, how tried ., 720 

883. Jury, how waived 720 

884. Either party failing to appear, trial may proceed at request of 

other party 720 

885. Challenges to jurors 720 

886. Manner of pleading a written instrument 720 

887. If a copy of an instrument be filed, the signatures will be deemed 

admitted, unless denied under oath 721 

CHAPTER Vin. 

JUDGMENTS (OTHER THAN BY DEFAULT) IN JUSTICES* COURTS. 

Section 889. Judgment by confession 721 

890. Judgment of dismissal entered in certain cases without prq'udice 722 

891. Judgment upon verdict 723 

892. Judgment after trial by the Court 723 

898. Judgment when the defendant is subject to arrest 723 

894. If the sum found due exceeds the jurisdiction of the Justice, the 

excess may be remitted 723 



CONTENTS. Ixi 

Sectiov 8d5. Offer to compromise before trial 724 

896. Costa must be included in the judgment 724 

897. Abstract of judgment 724 

898. Abstract may be filed and docketed in County Clerk's office 724 

899. Effect of docketing i 725 

900. Judgment not a lien unless abstract is recorded in the Becorder's 
office 725 

' CHAPTER IX. 

EXECUTIONS FROM JUSTICES' COURTS. 

I 

I SscnoK 901. Execution may issue at any time within five years 726 

902. Execution, contents of. 726 

I 903. Renewal of execution 727 

I 904. Duty of officer receiving execution 727 

I 905. Proceedings supplementary to execution 727 

i 
I 

I CHAPTER X. 

I CONTEMPTS IN JUSTICES* COURTS. 

I 
I 

Section 906. Contempts a Justice may punish for 728 

907. Proceedings for contempts 728 

908. Same 728 

I 

' 909. Punishments for contempts •* 728 

I 910. The conviction must be entered in the docket 729 

CHAPTER XL 

DOCKETS OF JUSTICES. 

SsCTiOK 911. Docket, what to contain 729 

912. Entries therein primary evidence of the fact 781 

913. An index to the docket must be kept : 731 

914. Dockets must be delivered by Justice to his successor or to the 
County Clerk 731 

915. Proceedings when office becomes vacant and before a successor 
is appointed 732 

916. A Justice may issue execution or other process upon the docket 
of his predecessor 732 

917. Successor of a Justice, who shall be deemed.. 782 

918. If two Justices might be deemed successors, the County Judge 
shall designate one. 732 



Mi CONTENTS. 



CHAPTER Xn. 



t 



GENERAL PROVISIONS RELATING TO JUSTICES COURTS- 
SECTION 919. Justices may issue subpoenas and final process to any part of 

the county 733 

920. Blanks must be filled in all papers issued by a Justice, except 

subpoenas 733. 

921. Justices to receive all moneys collected and pay same to parties 733 

922. In case of disability of Justice, another Justice may attend on 

his behalf. 733 

928. Justices may require security for costs 734 

924. Who entitled to costs 734 

925. What provisions of Code applicable to Justices' Courts 734 



TITLE XII. 

PROCEEDINGS IN CIVIL ACTIONS IN POLICE COURTS. 

Section 929. How commenced 735 

930. Summons must issue on filing complaint 735 

931. Defendant may plead orally or in writing 735 

932. Trial by jury, when defendant is entitled to 735 

933. Proceedings to be conducted as in Justices' Courts 735 



TITLE XIII. 

APPEALS IN CIVIL ACTIONS. 

Chaptek I. Appeals in general 736 

II. Appeals from District Courts 752 

III. Appeals from County Courts 756 

IV. Appeals from Probate Courts 757 

V. Appeals to County Courts 758 

CHAPTER I. 

APPEALS IN GENERAL. 

Section 936. Judgment and orders may be reviewed 737 

987. Orders made out of Court, without notice, may be reviewed by 

the Judge 737 

988. Party aggrieved may appeal. Names of parties «% 737 

939. Within what time appeal may be taken..... 738 

940. Appeal, how taken 740 



CONTENTS. Mii 

SscnoK 911. Undertaking or deposit on appeal 748 

942. Undertaking on appeal from a money judgment 743 

943. Appeal from a judgment for delivery of documents 744 

944. Appeal from a judgment directing the execution of a convey- 

ance, etc 745 

945. Undertaking on appeal con^rning real property 745 

946. Stay of proceedings. The security on appeal may be limited in^ 

the case of an execution, etc 746 

947. Undertaking may be in one instrument or several 746 

948. Justification of sureties on undertaking on appeal 746 

949. Undertakings in cases not specified 748 

950. What papers to be used on an appeal from the judgment 748 

951. What papers used on appeals fh>m orders, except orders granting 

or refusing new trials 749 

952. What papers to be used on an appeal from an order granting ' 

or refusing anew trial 750 

953. Copies and undertakings, how certified 750 

954. When an appeal may be dismissed. When not 750 

955. Effect of dismissal 750 

956. What may be reviewed on an appeal from judgment 751 

957. Remedial powers of an appellate Court 751 

958. On judgment on appeal, remittitur must be certified to the Clerk 

of the Court below 751 

959. Provisions of this Chapter not applicable to appeals to County 

Courts 752 

CHAPTER n. 

APPEALS FROM DISTRICT COURTS. 
SxcnoK 963. When an appeal may be taken 752 

CHAPTER in. 

APPEALS FROM COUNTY COURTS. 
Skctton 966. When may be taken 756 

CHAPTER IV. 

APPEALS FROM PBOBATE COTTBTS. 

t 

Sectiok 969. When may be taken 757 

970. Executors and administrators not required to give undertaking 

on appeal 757 

971. Acts of acting administrator, etc., not invalidated by reversal 

of order appointins: him 758 



hdv CONTENTS. 

CHAPTER V. 

APPEALS TO COUNTY COURTS. 

Section 974. Appeal from judgment of Justices' or Police Courts 758 

875. Party appealing on questions of law alone must prepare a state- 
ment. Settlement of statement 759 

976. If the appeal be upon questions of fact, or of law and fact, no 

statement need be made 759 

977. Upon the appeal, the Justice must transmit the case to the 

County Court 760 

978. Undertaking on appeal. Justification of sureties 761 

979. On filing undertaking, execution must be stayed 192 

980. Miscellaneous provisions on trials in County Courts 762 



• 



TITLE XIV. 

OP MISCELLANEOUS PROVISIONS. 

Chapter I. Proceedings against joint debtors 763 

II. Ofifer of the defendant to compromise 765 

III. Inspection of writings 766 

IV. Motions and orders 767 

V. Notices, and filing and service of papers 770 

VI. Of costs 778 

VII. General provisions 791 

CHAPTER I. 

PROCEEDINGS AGAINST JOINT DEBTORS. 

Section 989. Parties not summoned in action on joint contract may be sum- 
moned after judgment 763 

990. Summons in that case, what to contain and how served 761 

991. Affidavit to accompany summons 764 

992. Answer, when filed and what it may contain 764 

993. What constitute the pleadings in the case 764 

994. Issues, how tried. Verdict, what to be 764 

CHAPTER n. 

OFFER OP THE DEFENDANT TO COMPROMISE. 

Section 997. Proceedings on ofifer of the defendant to compromise after suit 

brought 766 



CONTENTS. IXT 

CHAPTER m. 

INSPECTION OF WRITINGS. 
Skction 1000. A party may demand inspection and copy of a book, paper, etc. 766 

CHAPTER IV. 

MOTIONS AND ORDERS. 

Skctiok 1003. Order and motion defined 767 

1004. Motions and orders, where made 767 

1005. Notice of motion, at what time to bcKiven 768 

1006. Transfer of motions and orders to show cause..... 769 

1007. Order for payment of money, how enforced. 770 

CHAPTER V. 

NOTICES, AND PILING AND SERVICE OP PAPERS. 

Skctiok 1010. Notices and papers, how served 770 

1011. When and how served 770 

1012. Service hy mail, when 774 

1013. Service by mail, how 774 

1014. Appearance. Notices after appearance 775 

1015. Service on non-residents. Where a party has an attorney, 

service shall be on such attorney 776 

1016. Preceding provisions not to apply to proceeding to bring party 

into contempt 777 

1017. Service by telegraph 777 

CHAPTER VI. 

OF COSTS. 

SxcnoK 1021. Compensation of attorneys. Costi$ to parties 778 

1022. When allowed of course to plaintiff. 781 

1023. Several actions brought on a single cause of action can carry 

costs in but one 782 

1024. Defendant's costs must be allowed of course, in certain cases 783 

1025. Costs, when in the discretion of the Court 783 

1026. When the several dffendants are not united in interest, costs 

may be severed 784 

1027. Costs of appeal discretionary with Utie Court, in certain cases 784 

1028. Referee's fees 785 

I — Co. C. Pro. — vol. i. 



Ixvi CONTENTS. 

Section 1029. Continuance, costs may be imposed as condition of. 786 

1030. Costs when a tender is made before suit brought 786 

1031. Costs in action by or against an administrator, etc 786 

1032. Costs in a review other than by appeal 787 

1033. Piling of and affidavit to bill of costs 787 

1034. Costs on appeal, how claimed and recovered 788 

1035. Interest and costs must be included by the Clerk in the judg- 

ment 788 

1086. When plaintiff is a non-resident or foreign cori>oration, de- 
fendant may require security for costs 789 

1037. If such security be not given, the action may be dismissed 790 

1038. Costs when State is a party 790 

1039. Costs when county is a party 790 

CHAPTER VII. 

GENERAL PROVISIONS. 

Section 1045. Lost papers, how supplied 791 

1046. Papers without the title of the action, or with defective title, 

may be valid 791 

1047. Successive actions on the same contract, etc 791 

1048. Consolidation of several actions into one 791 

1049. Actions, when deemed pending 792 

1050. Actions to determine adverse claims and by sureties 792 

1051. Testimony, when to be taken by the Clerk 792 

1052. The Clerk must keep a register of actions 792 

1058. Two of three referees, etc., may do any act 792 

1054. The time within which an act is to be done may be extended... 792 

1055. Actions against a Sheriff for official acts 793 

1056. Actions may be prosecuted in the Spanish language in certain 

counties 798 

1057. Undertakings mentioned in this Code, requisites of. 793 

1058. People of State not required to give bonds when State is a party 794 



♦* 



THE 



CODE OF CIVIL PROCEDURE 



or THE 



STATE OF OALIFORNXA.. 



IN FOUE PAETS. 



1— Vol. I. 



Ixvi CONTENTS. 

\ Section 1029. Continuance, costs may be imposed as condition of. 786 

1030. Costs when a tender is made before suit brought 786 

I 1031. Costs in action by or against an administrator, etc 786 

! 1032. Costs in a review other than by appeal 787 

1038. Filing of and affidavit to bill of costs 787 

1034. Costs on appeal, how claimed and recovered 788 

1035. Interest and costs must be included by the Clerk in the judg- 

ment ^ 788 

1086. When plaintiff is a non-resident or foreign corporation, de- 

« f fendant may require security for costs 789 

1037. If such security be not given, the action may be dismissed 790 

1038. Costs when State is a party 790 

1039. Costs when county is a party 790 

CHAPTER VII. 

GENERAL PROVISIONS. 

SEcnoif 1045. Lost papers, how supplied 791 

1046. Papers without the title of the action, or with defective title, 

may be valid 791 

1047. Successive actions on the same contract, etc 791 

1048. Consolidation of several actions into one..... 791 

1049. Actions, when deemed pending 792 

1050. Actions to determine adverse claims and by sureties 792 

1051. Testimony, when to be taken by the Clerk 792 

1052. The Clerk must keep a register of actions 792 

1053. Two of three referees, etc., may do any act 792 

1054. The time within which an act is to be done may bo extended... 792 

1055. Actions against a Sheriff for official acts 798 

1056. Actions may be prosecuted in the Spanish language in certain 

counties 798 

1057. Undertakings mentioned in this Code, requisites of. 793 

1058. People of State not required to give bonds when State is a party 794 



*« 



THE 



CODE OF CIVIL PROCEDURE 



or THE 



STATE OF CALIFORNIA. 



IN FOUE PARTS. 



1_V0L. I. 



• 



THE 



* 

Code of Civil Procedure 



OY THE 

STATE OF OALIFOENIA. 



AN ACT 



TO ESTABLISH A CODE OF CIVIL PROCEDURE. 



The People of the State of California, represented in Senate 

and Assembly, do enact as follows: 

TITLE OF ACT. 

Skction 1. Title and division of this volume. 

1 . This Act shall be known as The Code op Civil Title and 

divifion 

Procedure op California, and is divided into Four of this 

' volume. 

Parts, as follows: 

Pabt I. OF COURTS OF JUSTICE. 

II. OF CIVIL ACTIONS. 

III. OF SPECIAL PROCEEDINGS OF A CIVIL NA- 
1 TURE. 

! IV. OF EVIDENCE. 



THE CODE OF CIVIL PROCEDURE 



OF 



CALIFOE]S'IA. 



PRELIMINARY PROVISIONS. 

SacTiOK 2. When this Code takes effect. 

3. Not retroactive. 

4. Kule of coDstruction of this Code. 

5. Provisions similar to existing laws, how construed. 

6. Tenure of offices preserved. 

7. Construction of repeal as to certain officers. 

8. Actions, etc., not affected by this Code. 

9. Lnpitadonp sh^tll continue to run. 



 * 



10. Holidii^^. '•••♦-"'* . . « • V, 



J •- •'»--'< 



' ' ' •-^ * : .". 53 



11. Same. 

12. Computation of time. 

13. Certain i^cts not to be done on holidays. 

14. "SeaP* defined. 

15. Joint authority. 

16. Words and phrases. 

17. Certain terms used in this Code defined. 

18. Statutes, etc., inconsistent with Code repealed, 

19. This Act, how cited, enumerated, etc. 
190. Judicial remedies defined. 

21. Division of judicial remedies. 

22. Action defined. 

23. Special proceeding defined. 
2A. Division of actions. 

25. Civil actions arise out of obligations or injuries. 

26. Obligation defined. 

27. Division of injuriee. 
2B. Injuries to property. 
29. lojuiies to the person. 



8 



Code op Civil Frocsdttrb. 



AotionSf 
Ho., not 
ftifeoted by 
ihisCodo. 



or continued in either of the Codes, such office ceases 
at the time the Codes take effect. 

8. No action or proceeding commenced before this 
Code takes effect, and no right accrued, is affected by 
its provisions, but the proceedings therein must con- 
form to the requirements of this Code as far as appli- 
cable. 

• Note. — The repeal of a statute conferring rights or 
prescribing remedies would have the effect to extin- 
guish actions instituted under it, and which were pend- 
ing when the repeal went into operation, if no provision 
were made enabling the Court to proceed to try and 
determine them. — ^McMinn vs. Bliss, 81 Cal., p. 122. 
Where an inchoate nght accrued under the statutes as 
they existed previous to the adoption of the Code, and 
by the Code the proceedings to perfect the right are 
regulated and prescribed, such regulations and require- 
ments must be pursued, or the party is remediless. — 
• See, particularly. People vs. Livingston, 6 Wend., p. 

526; Sedgwick on S. and C. Law, p. 679; see Sec' 18, 



C^- 



post. 



Limit^ ^ 0! T\Tien a limitation or period of time prescribed 

to rttn"\ in any existing statute for acquiring a right or barring 

\ a remedy, or for any other purpose, has begun to run 

\^ before this Code takes effect, and the same, or any 

y limitation, is prescribed in this Code, the time of limit- 

^ ation continues to run and has the Kke effect as if the 

S whole period had begun and ended after its adoption. 

V Note. — Necessary, because the statutes of limita- 

tions for civil actions and proceedings are embodied 
in this Code. 

Hoiidars. 1 0. Holidays, within the meaning of this Code, are : 
every Sunday, the first day of January, the twenty- 
second day of February, the fourth day of July, the 
twenty-fifth day of December, every day on which an 
election is held throughout the State, and every day 
appointed by the President of the United States, or by 
the Governor of this State, for a public fest, thanksgiv- 
ing, or holiday. 



Code op Civil Froobdttbe. 9 

11. K the first day of January, the twenty-second Same. 

day of February, or the twenty-fifth day of December ^,^^^^. ^^ /Ayj^^ 
fidls upon a Sanday, the Monday following is a holiday. 

12. The time in which any act provided by law is compute- 
to be done is computed by excluding the first day, and 
including the last, unless the last day is a holiday, and 

then it is also excluded. 

Note.— Price vs. Whitman, 8 Cal., p. 412; Inm 
Hountein Company vs. Haight, 89 Ca]., p. 540; Sol- 
diers' Voting Bill, 45 N. H., p. 612. A day is not to 
be considered a unit to the pr^udice of the rights of a 
party, and an examination may be had as to the v^ry 
point o/ time when the act was done. — Craig vs. Qod- 
Irey, 1 Cal., p. 415; People vs. Campbell, 1 Ca]., p. 
406. . Whenever time becomes important, Courts will 
inquire into a day, or even a fractional portion of a 
day. — People vs. Beatty, 14 Cal., p. 566. 

13. Whenever any act of a secular nature, other Oeruin 

acts not to 

than a work of necessity or mercy, is appointed by law j^Jif^Jj^*^ 
or contract to be performed upon a particular day, 
which day falls upon a holiday, such act may be per- 
formed upon the next business day with the same effect 
as if it had been performed upon the day appointed. 

NoTB. — Sunday is not regarded.— HcGill vs. Bank • 
United States, 12 Wheaton, p. 511. 

14. When the seal of a Court, public officer, or "Seai" 

deflnod. 

person is required by law to be affixed to any paper, 
the word ^^seal" includes an impression of such seal 
upon the paper alone as well as upon wax or a wafer < 

affixed thereto. 



J 



NoTX. — An impression upon paper oonstituies a good 
seal. — Connolly vs. Goodwin, 5 Cal., p. 220. There is 
"no good reason why such impression should not be 
made with a pen as well as with what is technically a 
stamp. The object is to give character to the instru- 
ment. • • • This is as well effected by a scra^wl 
with the word 'seal' within it, or with the initials 
• L. S.' "—Hastings vs. Vaughn, 5 Cal., p. 815. 



2~VoL. X 



\ 



10 CJoDB OF Civil Pbocbbubb. 

Joint . 1 5. Words giving a j oi nt authority to three or more 

. pu bhc officers or other persons are construed.as giving 
such authority to a majority of them, unless it is other- 
wise expressed in the Act giving the authority. 

WordBMid 16. Words and phrases are construed according to 
the context and the approved usage of the language; 
but technical words and phrases, and such others as 
have acquired a peculiar and appropriate meaning in 
law, or are defined in the succeeding section, are to be 
construed according to such peculiar and appropriate 
meaning or definition. 

Certain 17. Whenever the terms mentioned in this section 

terms ased . i"-!.!./-.-!! tt-^i 

tothu^ode are employed in this Code they are employed m the 
senses hereafter affixed to them, except where a 
different sense plainly appears: 

1. The term "signature " includes any name, mark, 
or sign, written with intent to authenticate any instru- 
ment or writing. 

2. The term "writing " includes both printing and 
writing. • 

^ 3. The term "land," and the phrases "real estate " 

) and "real property," includes lands, tenements, and 

^ hereditaments, and all rights thereto, and interests 

^ therein. 

>s 4. The words "personal property" include money, 

goods, chattels, evidence of debt, and "things in 
action." 

6. The word " property " includes personal and 
real property. 

6. The word "month" means a calendar month, 
unless otherwise expressed; and the word "year," 
and also the abbreviation "A. D.," is equivalent to 
the expression "year of our Lord." 
. 7. The word "oath" includes "affirmation" in all 
cases where an affirmation may be substituted for an 
oath; and in like cases the word "swear" includes 




CoDB OP Civil Procedure. 11 

the word ** affirm." Every mode of oral statement Certain ^ 

" terms used 

nnder oath or affirmation is embraced by the term j^j^^J^J^' 
"testify,** and every written one in the term "de- 
pose." 

8. The word "State," when applied to the different 
parts of the United States, includes the District of 
Columbia and the Territories; and the words "United 
States" may include the District and Territories. 

9. Where the term "person** is used in this Code * 
to designate the party whose property may be the v 
sabject of any offense, action, or proceeding, it in- » 
eludes this State, any other State, Government, or T| 
couutry which may lawfully own any property within ^^ 
this State, and all public ani private corporations or 

joint associations, as well as individuals. ^ 

10. The word "person" includes bodies politic and 
corporate. 

11. The singular number includes the plural, and 
the plural the singular. 

12. Words used in the masculine gender compre- 
hend as well the feminine and neuter. 

13. Words used in the present tense include tl^e 
future, but exclude the past. 

14. The word "will** includes codicils. 

15. The^-word "writ** signifies an order or precept 
in writing, issued in the name of the people, or of a 
Court, or judicial officer. 

16. "Process** is a writ or summons issued in the 
course of judicial proceedings. 

17. The word "vessel,** when used with reference 
to shipping, includes ships of all kinds, steamboats, 
and steamships, canal boats, and every structure 
adapted to be navigated from place to place. 

18. The term "peace officer** signifies any one of 
the officers mentioned in Section 817 of Tab Penal • 
Code. 





r 



12 * Code of Civil Procedure. 

19. The term " magistrate " signifies any one of the 
officers mentioned in Section 808 of The Penal Code. 

statute§. 18. 1^0 statute, law, of rule is continued in force 

etciDcon- ' ' 

Birtent with bccause it is consistent with the provisions of this Code 
repealed. ^^ ^j^^ same subject; but in all cases provided for by 
this Code, all statutes, laws, and rules heretofore in 
force in this State, whether consistent or not with the 
provisions of this Code, unless expressly continued in 
t force by it, are repealed and abrogated. This repeal 

or abrogation does not revive any former law hereto- 
fore repealed, nor does it affect any right already 
existing or accrued, or any action or proceeding already 
taken, except as in this Code provided; nor does it 
affect any private statute not expressly repealed. 

Note. — ** Every statute must be considered'according 
to what appears to have been the intention of the LepT' 
islature, and even though two statutes relating to the 
same subject be not in terms repugnant or inconsistent, 

^ if the latter statute was clearly intended to prescribe 

the only rule which should govern in the case provided 

fl' for, it will be construed as repealing the original Act.'' 

City and County of Sacramento vs. Bird, 15 Cal., p. 

. 295; Sedgwick on C. and S. Law, p. 124; also, note to 

> Sec. 8, ante. ** Whether consistent or not with the 

provisions of this Code." See Perry vs. Ames, 26 Cal., 
p. 382, where it is held that, ** as all laws are presumed 
to be passed with deliberation, and with full knowledge 
# of all existing ones on the same subject, it is but rea- 

sonable to conclude that the Legislature, in passing a 
statute, did not intend to interfere with or abrogate any 
former law relating to the same matter, unless the 
repugnancy between the two is irreconcilable." See, 
also, Bowen vs. Lease, 5 Hill, p. 522, from which this 
language is quoted. In view of this decision, the lan- 
guage of the text was necessary, repealing all former 
laws on the same subject, whether consistent or not. 

This Act, 1 9. This Act, whenever cited, enumerated, referred 
enume- ' to, or amended, may be designated simply as " The 

'CoDK OF Civil Procedure," adding, when neceasaiy, 

the number of the section. 



f 



CoDB OP Civil Proobdure. 18 

20. Judicial remedies are such as are administered Jndiciai 

, • . . remedies 

oj the Coorts of justice, or by judicial officers empow- defined, 
ered for that purpose by the Constitution and statutes 
of this State. 

Note. — Introduced as a concise and convenient defi- 
nition of judicial remedies. 

Definitiok of Rkmedy. — **The action or means ' 

given by law for the recovery of a right." — Tomlin's 
Law Diet. " The means employed to enforce a right 
or redress an injury."— Bouv. Law Diet. The defini- 
tion in the text is introduced as a concise and conveni- 
ent definition of judicial remedies. Eveiy* original 
application to a Court of justice for a judgment or 
order is a remedy. — Belknap vs. "Waters, 11 N. Y., p. 
478; Matter of Cooper, 22 N. Y., p. 87; s. c, 11 Abb., 
p. 329; 20 How., p. 8. 

21. These remedies are divided into two classes: Division of 

- . . judicial 

1. Actions; and, remedies. 

2. Special proceedings. 

Note,— In the matter of Dodd, 27 N. Y. p. 638, a 
special proceedinp^ is said to be limited to a litigation in 
a Court of justice. So, also, the same views are held 
in People vs. Heath, 20 How., p. 307; People vs. 
Board of Police, etc., 39 N. Y., p. 506; afilrming 8. c, 
40 Barb., p. 626; but see, contra. People vs. Board- 
man, 4 Ke^'cs, p. 59; see People ys. Commissioners of 
Highways, etc., 27 How., p. 158, and cases there com- 
mented on; Wait's N« Y. Code, Sec. 1. 

22. An action is an ordinary proceeding in a Court Action 

•^ ^ ®. defined. 

of justice by whfch one party prosecutes another for 
the enforcement or protection of a right, the redress 
or prevention of a wrong, or the punishment of a pub- 
lic offe|^e. 

NoTK. — An action is a lawful demand of a man's 
right. — Co. Litt., p. 2S5a, Sec. 492; Comyn*s Digest, 
'* Action;" Bank of Commerce vs. B. and Washing- 
ton R. R., 10 How., p. 9; see Mayhcw vs. Robinson, 
10 How., p. 164. Any judicial procoedinff^ which^^ jf 
c onducte d to a termination, will result in a judgment , 
is an action. — 'People vs. Co. Judge of Rensselaer, 13 
How., p. 400; see remarks of Justice Potter, in Pcc^lo 
vs. Colborne, 20 How., p. 880. Not every judicial 
decision which terminates in a judgment constitutes an 



r 



14 CoDB QF Civil Procedure. 

action.— Coe vs. Coe, 37 Barb.,* p. 233; 14 Abb.f p. 88; 
Bee 2 Wait's Law and Practice, p. 40. 

What are A.ctioks.— Under a similar provision in 
the New York Code, it was held* that a proceeding 
supplementary to execution was not a special proceed- 
ing under the Code, but a proceeding in the action. — 
Dresser vs. Van Pelt, 15» How., p. 19; Seeley vs. 
Black, 35 How., p. 309; Lawrence vs. Farmers* L. & 
T. Co., 6 Duer, p. 689; Bank of Genesee vs. Spencer, 
15 How., p. 412. An order or decree having been made 
in an action, if a party to the action institutes proceed- 
ings to enforce it, it is a proceeding in the action, and 
not a special proceeding. — Pitt vs. Davison, 37 N. Y., 
p. 235; 34 How., p. 374; 3 Abb., (N. S.,) p. 405. Held 
otherwise, however, if proceeding be for punii-hment, 
as for contempt, of party disobeying order. — See Hol- 
stein vs. Rice, 24 How., p. 135; 15 Abb., p. 307; Forbes 
vs. Willard, Barb., p. 520. Proceedings /or partition 
of lands by summons and complaint are actions. — 
Myers vs. Rasback, 2 Code R., p. 70; 3 How., p. 318; 
Backus vs. Stilwell, 1 Code R., p. 70; 3 How., p. 318; 
contra, see Traver vs. Traver, 3 How., p. 351; aff*d 3 
How., p. 368; 1 Code R., p. 112; explained in Row vs. 
Row, 4 How., p. 133. The following have been held 
actions: A proceeding to enforce a mechanic's lien. — 
People vs. Co. Judge of Renssalaer, 13 How., p. 398. 
To compel a determination of claims relating to real 
property. — Mann vs. Provost, 3 Abb., p. 446. To ob- 
tain the remedy given by a writ of mandate where 
return is made and issues joined. — People vs. Lewis, 28 
How., p. 159; id., p. 470; People vs. Colbome, 20 
How., p. 382. A proceeding by the Attorney General 
to annul a patent granting lands. — ^People vs. Clarke, 
11 Barb., p. 337; 9 N. Y., p. 349. 

What are not Actions.— A submission of a con- 
troversy under Sec. 1138, post, of this Code, would not 
be an action. — See decision on a similar section of New 
York Code; Lang vs. Ropke, 1 Duer, p. 701. Neither 
would an application to vacate a judgmenUrendered 
upon confession. — Belknap vs. Waters, 11 N. Y., p. 
477. Nor proceedings on the reference of claims against 
executor or administrators. — Coe vs. Coe, 37 Barb., p. 
232; 14 Abb., p. 86; Akely vs. Akely, 17 How., p. 21. 
Nor a proceeding to punish a party for contempt in 
disobeying order in proceedings supplementary to exe- 
.cution. — Holstein vs. Rice, 24 How., p. 135; Gray vs. 
^ Cook, 15 Abb., p. 308; Forbes vs. Willard, 54 Barb., p. 

520. Nor an application for admission as attorney and 
an order denying it. — Matter of Cooper, 22 N. Y., p. 



CoDB OF Civil Pbocbdube. 15 

67; Matter of the Graduates, 20 How., p. 1; 11 Abb., 
p. 801. Nor a summary proceeding to remove tenant 
from possession of demised premises. — People ys. Ham- 
ilton, 15 Abb., p. 328; 39 N. Y., p. 107; People vs. 
Boardman, 4 Keyes, p. 59. Nor an application for 
injunction which before answer is not an ordinary pro- 
ceeding in the action. — Becker vs. Hagar, 8 How., p. 
66; see Wait's N. Y. Code, Sec. 2. 



pToceeding 
defined. 



23. Every other remedy is a special proceeding.. J^jJ 

Note. — What is a special proceeding? Punishment 
of contempts. — See Holstein vs. Rice, 24 How., p. 135; 
15 Abb., p. 307; Forbes vs. Willard, 54 Barb., p. 520; 
37 How., p. 198. Mandamus a special proceeding. — 
See People vs. Schoonmaker, 19 Barb., p. 658; but see 
People vs. Lewis, 28 How., p. 159; Ct. of App., s. c, 
28 How., p. 470. Proceedings supplementary to execu- 
tion have been held not to be special proceedings. — 
Dresser vs. Van Pelt, 6 Duer, p. 688; 15 How., p. 19. 
In the Matter of Dobb, 27 N. Y., p. 629, it was held 
that " to be a special proceeding in the sense of the 
(N. Y.) Code, there must be a litigAtion in a Court of 
justice;" but a different opinion is entertained in People 
vs. Commissioners of Highways, etc., 27 How., p. 158; 
People vs. Boardman, 4 Keyes, p. 59. Part III of this 
Code treats of all such special proceedings as writs of 
mandate and prohibition. — Sees. 1067-1110. Contest- 
ing elections. — Sees. 1111-1127. Summary proceed* 
ings.—Seca. 1132-1178. Enforcement of liens. — Sees. 
1180-1206. Contempts.— Sees. 1209-1222. Voluntary 
dissolution of corporations. — Sees. 1227-1233. Eminent 
domain (condemnation of private property). — Sees. 1287- 
1263. Escheated estates.— Sees. 1269-1272. Change of 
names.— Sees. 1275-1278. Arbitrations.— Sees. 1281- 
1290. Proceedings in Probate Courts.— Sees. 1298-1346. 
Of sole traders.— Sees. 1811-1821. Proceedings in 
insolvency. — Sec. 1822. ** Special cases" have been 
defined to be ** special proceedings," characteristically 
* differing fW>m ordinary suits at common law, but em- 
bracing such matters as writs of quo warranto, man- 
damus, inquisitions of lunacy, and the like. — Jacks vs. 
Day, 15 Cal., p. 91; Saunders vs. Haynes, 13 Cal., p. 
145; People vs. Shoemaker, 19 Barb., p. 657; Kun- 
dolph vs. Thalheimer, 2 Kerjtan, p. 593; see, however, 
Parsons vs. Tuolumne Water Co., 5 Cal., p. 43; and 
Brock vs. Herrick, 5 Cal., p. 279. Proceedings for 
partition are special proceedings. — Waterman vs. Law- 
rence, 19 Cal., p. 218. 






16 Code of Civil Progedubb. 

Divisions of 24. Actions are of two kinds: 

aoUons. 

1. Civil; and, 

2. Criminal. 

cirii 25. A civil action arises out of: 

aotioDS 

SSSSiSS™ 1- ^^ obligation; 
ortaiuri-. 2. An injury. 

QUHiatioii A ' 26. An obligation is a legal duty, by which one 



y 



^ 



jA person is bound to the performance of an act towards 



another, and arises from: 

1. The contract of the parties; or, 

2. The operation of law. 



DiTisionof 27, An injury IS of two kiuds: 

injurios. -mi 1 

1. To the person; and, 

2. To property. 

iq}urie8to 28. An injury to property consists in depriving its 

proporty. 

owner of the benefit of it, which is done by taking, 
withholding, deteriorating, or de^troying it. 

Injuries to 20. Every other injury is an injury to the person. 

tho person. . 

ciTTii SO. A civil action is prosecuted by one party 

•ction, by . i n i /■ • ' t» 

whom affamst another for the enforcement or protection of a 

prosecuted. ^ , ^ 

right, or the redress or prevention of a wrong. 
Criminal 31. The Penal Code defines and provides for the 

•etions. • • i x- 

prosecution of a criminal action. 

oiTii ud 32. "When the violation of a riffht admits of both 
remedies ^ a civil and Criminal remedy, the rieht to prosecute the 

not merged . ^ > & r 

one is not merged in the other. 

Note. — Civil remedies are not merged in felonies, 
nor are they suspended until the conviction of the 
offender. — Gordon vs. Hostctter, 87 N. Y., p. 99; 4 
Abb., (N. 8.), p. 283; 4 Trans. App., p. 375; "Wait's 
Ann. N. T. Code, Sec. 7. 



PAET I. 



OF COURTS OF JUSTICE 



3 — YoL. I. 



PABT I. 



OF COURTS OF JUSTICE. 



TITLE I. 

OP THEIR ORGANIZATION, JURISDICTION, AND TERMS. 

Chapter L Of Courts of justice in general. 

II. Of the Court for the trial of impeach^ 

ments. 
m. Of the Supreme Court. 
IV. Of the District Courts, 
V. Of the County Courts, 
VI. Of the Probate Courts. 
Vn. Of the Municipal Criminal Court of 
San Francisco. 
Vni. Of Justices' Courts, 
IX. Of Police Courts. 
X. General provisions respecting Courts of 
justice. 



CHAPTER I. 

COURTS OF JUSTICE IN GENERAL. 

SxcTioK 33. The several Courts of this State. 
34. Courts of record. 

33. The following are the Courts of justice of this 
State: 



20 Code op Civil Procebubb. 

The several 1. The Court for the trial of impeachments; 

Courts of ^ 

this State. 2. The Supreme Court; 
8. The District Courts; 

4. The County Courts; 

5. The Probate Courts; 

6. The Municipal Criminal Court of San Francisco; 

7. The Justices* Courts; 

8. The Police Courts. 

Note.— Based upon Act of 1868 (Stats. 1863, p. 833), 
with the Court for the trial of impeachments and the 
Municipal Criminal Court of San Francisco added, 
and " Police Courts ^* substituted in the place of the 
sixth subdivision of that Act, which reads '* Record- 
ers' and other inferior municipal Courts." 

1. Jurisdiction of Courts in general. — The first 
point decided by any Court, although it may ^ot be in 
terms, is that the Court has jurisdiction. — Clary ys. 
Hoagland, 6 Cal., p. 688. 

2. Void judgment if jurisdiction be wanting. 
The judgment of any Court is void where there is a 
want of jurisdiction. — Hahn vs. Kelly, 34 Cal., p. 402. 

3. Jurisdiction of Courts before adoption of 
Constitutional amendments. — Effect of amend- 
ments to Constitution on jurisdiction of the Courts ex- 
isting prior to their adoption. — See Gillis vs. Bamett, 
88 Cal., p. 393. And as to jurisdiction of Courts 
existing prior to adoption of Constitution, in 1849, and 
intendments in favor of their judgments. — See Kyder 
vs. Cohn, 87 Cal., p. 69. 

4. "Amount in controversy."— The " amount in 
controversy " means the sum claimed in the complaint 
or declaration, so far as relates to the jurisdiction of the 
Court. Costs of suit, etc., are mere incidents, not con- 
trolling the jurisdiction ; so a judgment may be for 
more than the ** amount in controversy " and not affect 
the matter of jurisdiction. — Bradley vs. Kent, 22 Cal., 
p. 169. 

5. Jurisdiction by certiorari.— The jurisdiction 
of a Court by certiorari (writ of review) does not depend 
upon the amount in controversy (overruling People vs. 
Carman, 18 Cal., p. 693).— Winter vs. Fitzpatrick, 35 
Cal., p. 273. 

6. Common law jurisdiction. — The phrase, 
''Courts having common law jurii*diction,'' discussed 
and defined in Matter of Martin Conner, 39 Cal., p. 98. 

7. Inquiry by one Court into Jurisdiction of 



Code op Civil Procedure. 21 

ANOTHER. — ^The power of a Court of law to inquire 
into the jurisdiction of a Court of original jurisdiction 
by which the judgment was rendered, is fully recog- 
nized, but the inquiry is limited to an inspection of the 
record, and if it does not appear affirmatively upon the 
face of the record that the Court had no jurisdiction, 
the impeachment, for all the purposes of a defense to 
the action at law, has failed. The jurisdiction in Courts 
of original jurisdiction need not appear affirmatively 
upon the face of the record, the presumption thereof - 
coming to the aid of the record, — Carpentier vs. City 
of Oakland, 30 Cal., p. 439. 

8. Prksumption in favor of Jurisdiction.— It 
is presumed (where judgment is rendered by a Court of 
original jurisdiction) that the Court had jurisdiction 
over the person of the defendant, unless the contrary 
affirmatively appears in the record. — Sharp vs. Daug- 
ney, 33 Cal., p. 507. 

9. When Jurihdictiov presitmed in Courts of 
RECORD. — As to Courts of record, all intendments are 
in &vor of the regularity of their proceedings. — People 
vs. Blackwell, 27 Cal., p. 65; Hahn vs. Kelly, 34 Cal., 
p. 391; Barrett vs. Carney, 83 Cal., p. 530; Quivey vs. 
Porter, 87 Cal., p. 458; People vs. Connor, 17 Cal., p. 
361; People vs. Hobson, 17 Cal., p. 424; People vs. 
Robinson, 17 Cal., p. 868; People vs. Lawrence, 21 
Cal., p. 372. See generally Ryder vs. Cohn, 37 Cal., 
p. 69. 

10. Want of Jurisdiction, how taken advan- 
tage OF. — In Courts of general jurisdiction, the cause 
of action need only to bo stated, and the want of juris- 
diction arising from the insufficient value of the subject 
matter in dispute must be taken advantage of in some 
other way.— Doll vs. Feller, 16 Cal., p. 432. In a 
Court of limited and special jurisdiction, every fact 
essential to confer jurisdiction must be alleged. But 
the rule is otherwise in Courts of general jurisdiction. 
A demurrer to their jurisdiction only lies where the 
want of such jurisdiction appears affirmatively upon 
the &ce of the complaint. 

11. Jurisdiction not presumed in Courts not 
OF record. — The jurisdiction of Courts not of record 
being special and limited, the law presumes nothing in 
ikvor of their jurisdiction, and a party who asserts a 
right under a judgment rendered in such a Court must 
show affirmatively every fact necessary to confer such 
jurisdiction. — Rowley vs. Howard, 23 Cal., p. 401; 
Swain vs. Cliase, 12 Cal., p. 283; Whitwell vs. Bar- 
bier, 7 Cal., p. 64; Lowe vs. Alexander, 15 Cal., p. 296; 



22 Code op Civil Prookdurb. 

King vs. Randlet, 33 Cal., p. 318; Jolley vb. Foltz, 34 
Cal., p. 321. 

12, MeAKIVQ of " WiTHIK THK JUKISDICTIOH OF 

THK CouKT." — By the phrase " within the jurisdiction 
of the Court " is meant ** within the State," so far as 
to the necessity of producing a subscribing witness or 
accounting for an omission so to do. — Stevens vs. Irwin, 
a2 Gal., p. 316. 

13. Appeals from State to Federal Courts; 
Transfer of Causes; Conflicts of Jurisdiction; 
Admiralty and Maritime Cases, etc.— As to ap- 
peals from State Courts to the Supreme Court of the 
United States; when allowed, how taken, etc., see Fer- 
ris vs. Coover, 11 Cal., p. 175; Hart vs. Burnett, 20 Cal., 
p. 171; Greely vs. Townsend, 25 Cal., p. 610. It was 
held that no cause can be transferred from a State 
Court to any Court of the United States. The Federal 
and State Courts have in some cases concurrent juris* 
diction, but the Court which first has possession of the 
subject must decide it. Neither a writ of error nor 
appeal lies to take a case from a State Court to the 
Supreme Court of the United States. An appeal is 
allowed when the decision of the State Court is adverse 
to a law of Congress, treaty, etc. — Johnson vs. Gordon, 
4 Cal., p. 368.^ See this case reviewed in Warner vs. 
Uncle Sam, 9 Cal., p. 697, and finally overruled, in most 
particulars, in Greely vs. Townsend, 25 Cal., p. 613; see, 
also, Martin vs. Hunter's Lessees, 1 Wheat., pp. 304, 
372; Cohen vs. Virginia, 6 Wheat., p. 264: Waring vs. 
Clark, 5 How., p. 461. As to jurisdiction and removal 
of cause between State and Federal Courts, see Calder- 
wood vs. Hager, 20 Cal., p. 167; Hart vs. Burnett, 20 
Oal., p. 169. The Jud^e of the United States District 
Court for the District of Oregon has not jurisdiction 
while holding the Circuit Court of the United States 
for the District of California, to issue a citation on a 
writ of error from the Supreme Court of the United 
fitates to the Supreme Court of this State. He has not 
jurisdieti^on either to take or approve security required 
in order to make the writ of error a supersedeas^ etc. 
The citation and security taken would not operate as a 
wpersedeas in such a case. — Tompkins vs. Hahoney, 
82 Gal., p. 240. The jurisdiction of the Courts of the 
United States in admiralty and maritime causes is not 
exclusive; the States have power to confer upon their 
Courts all admiralty and maritime jurisdiction. Con- 
gress has no power to make this jurisdiction exclusive 
in the Federal Courts. State and Federal Courts have 
in these cases concurrent original jurisdiction.— John* 



CoDB OF Civil Proobdubb. ^ 

flon Ys. Gordon, 4 Cal., p 868; see, however, Greely 
T8. Tuwnsend, 25 Cal., p. 618, overrulinfi^ this case; 
Taylor vh. Steamer Columbia, 5 Cal., p. 268; Warner 
T8. Steamship Unde Sam, 9 Gal., p. 697; Ord vs. 
Steamer Uncle Sam, 18 Cal., p. 869; and see The Moses 
:|^ylor, 4 Wallace n. S. Bep., p. 411; The Hinevs. 
Trevor, 4 Wallace U. S. Rep., p. 656. See particularly 
Appendix Pol. Code, vol. 2, p. 844, note to Art. Ill, 
Sec. 2, Federal Constitution. • 

14. ACTIOl^a AGAINST BTEAMKB8 AKD VEB8EL8.— 

The provisions of the Code, Sees. 813-^27, post, pro- 
viding for actions against steamers, vessels, and boats* 
confers upon the District Court admiralty jurisdiction 
pro tanto. The rule in fegard to actions in rem., in 
both admiralty and common law Courts, gives exclu- 
sive jurisdiction in a given case to that tribunal which 
has acquired it by a judicial seizure of the thing, and 
such seizure has always been essential to a proceeding 
in rem. But our statute alters the rule. It makes the 
service of the process upon a person standing in a par- 
ticular relation to the thing equivalent to its seizure for 
the purpose of conferring jurisdiction; and it necessarily 
fi>llowj that jurisdiction in rem. may exist in several ^ 

Courts at the same time. The Court, however,- whose 
mesne or final process has first made actual seizure 
must have exclusive power over its disposal and the 
distribution of the funds arising therefrom. The judg- 
ments of other Courts, if filed in the Court having cus- 
tody of the fund, are complete adjudications of the 
subject matter of litigation which they disclose, and 
entitled to distribution according to their respective 
merits.— A verill vs. The Hartford, 2 Cal., p. 806; but 
lee The Moses Taylor, 4 Wallace U. S. Bep., p.'411; 
The Hine vs. Trevor, 4. id., p. 556; see Appendix Pol. 
Code, vol. 2, p. 844, note to Art. Ill, Sec. 2, Federal 
Constitution. 

15. Abmisaltt 0A8I8.— a caiue of action, to be 
cognizable, in admiralty, whether arising out of a con- 
traot^ claim, service, or obligation or liability of any 
kind, must relate to the business of commerce and 
navigation. — ^People vs. Steamer America, 84 Cal., p. 
679; see, also, this case for the manner of raising in the 
State Courts the issue of jurisdiction as to whether the 
action is within maritime jurisdiction. 

16. Maritime CAuass.— In a case clearly arising on 
questions belonging to admiralty and maritime trans- 
actions, it has been intimated that a State Court 
might bold its jurisdiction where the people of the 
State were plaintifib, and the action was for the ool- 



24 Code op Civil Procedure. 



lection of State revenue. — See People vs. Steamer 
America, 84 Cal., p. 681. 

17. Suits bktwekn Citizeitb akd Porkioneks.— 
United States Courts have no jurisdiction over suits 
between alien and alien, but are confined to actions 
between citizens and foreigners (Mq^sman vs. Higgin- 
son, 4 Dallas, p. 12; Montalet vs. Murray, 4 Granch, p. 
46; Hodgson vs. Bowbank, 5 Oranch, p. 303; Jackson 
vs. Twentyman, 2 Pet., p. 136), and where both parties 
to a suit are aliens the action cannot be on that account 
transferred from a State to a Federal Court. — Orosoo 
vs. Gagliardo, 22 Cal., p. 83. 

18. When State Courts have Jurisdiction oyer 
Foreign Seamen, etc.— When a foreign master of a 
foreign vessel discharges a foreign seaman for no wrong- 
ful act, the seaman may maintain an actios for his 
wages in a State Court. All persons in time of peace 
(in such matters as these), have the right to resort to 
the tribunals of the nation where they may happen to 
be, for the protection of their rights. The jurisdiction 
of Courts over them is complete, except where it is 
.excluded by treaty. — Pugh vs. Gillam, 1 Cal., p. 485; 
The Jerusalem, 2 Gallison, p. 190; Moron vs. Boudin, 
2 Pet. Adm. Decis., p. 415. 

19. State Courts no Jurisdiction over Crimes 
against United States.— The State tribunals have 
no jurisdiction to punish crimes against the laws of the 
United States as such. But the same act may be an 
ofiense against both the laws of the United States and 
of this State.— People vs. Kelly, 38 Cal., p. 145. State 
tribunals have no jurisdiction to punish peijury against 
the United States. — State vs. Adams, 4 Blackford, p. 
146; State vs. Pike, 4 N. Hamp., p. 83; People vs. 
Kelly, 38 Cal., p. 145. 

20. Jurisdiction op State Courts over action 
OF U. S. Land Department. — ^It has been questioned 
whether the Courts of California have jurisdiction to 
review the action of the U. S. Land Departmeht upon 
contests for rights of preemption when the suljject mat- 
ter of the investigation, and upon which the preference 
depended, were not transactions which occurred in the 
contest, but before it.— Quinn vs. Kenyon, 38 Cal., p. 
499. 

21. Trespass committed by U. S. Officer. — The 
fact that a trespass was committed by a Marshal of the 
United States, or by a deputy, under cover of his office, 
does not deprive the District Court of jurisdiction over 
the same. — ^Hirsch vs. Rand, 39 Cal., p. 315. 



^ 



CoDB OF Civil Procedure. 25 

22. JURIBBICnOK Ol- OKE OOUBT CANNOT ENCROACH "\ 

UPON THAT OF ANOTHER.— Each branch of the judicial J 

department has its functions assigned lAthe Constitu- / 

tion. The Sixth Article of the Constitution seems to I 

have been drawn with great skill and caret ^nd endeav- v^ 

ors to establish a complete judicial system. It not only / 

provides for the establishment of the several judicial / 

tribunals, but also distributes among these tribunals I 

their several powers. It would derange our judicial I 

system if the Legislature could confer on one Court / 

the ftmctions and powers which the Constitution has / 
conferred on another. — Zander vs. Coe, 5 Cal., p. 230^ 

23. Courts of Concurrent Jurisdiction can- 
not INTERFERE WITH EACH OTHER'S ACTION.— One 

Court has no power to interfere with the judgments 
and decrees of another Court of concurrent jurisdic- 
tion. The only case in which it will be allowed is 
where the Court in which the action or proceeding is 
pendinjiif is unable, by reason of its jurisdiction, to 
afford the relief sought.— Anthony vs. Dunlap, 8 Cal., 
p. 26; Rickett vs. Johnson, 8 Cal., p. 84; Chipman vs. 
Hibb«rd, 8 Cal., p. 268; Fhelan vs. Smith, 8 Cal., p.. 
620; Uhlfelder vs. Levy, 9 Cal., p. 607; see, also, 
Oorham vs. Toomey, 9 Cal., p. 77. Nor does it 
make any difference if, in a suit in equity, new 
parties are brought in strangers to the action at law 
sought to be enjoined. — ^Uhlfelder vs. Levy, 9 Cal., p. 
607. There are exceptions to the general rule, how- 
ever, as, for instance, the same fraudulent debtor might 
confess different fraudulent judgments in different judi- 
cial districts. It would not then be necessary for cred- 
itors to bring a different suit in each different Court. 
So, also, where the Code requires the action to be tried 
in a particular county, it must be brought there. — s. c, 
9 Cal., p. 607. Compare this case with Heyneman vs. 
Bannenberg, 6 Cal., p. 376. Nor can a State Court 
eiyoin the proceedings of a Federal Court— Phelan vs. 
Smith, 8 Cal., p. 520. 

24. When Court has Jurisdiction by Mandamus. 
If a Court entertained jurisdiction of the action, its 
proceedings, however erroneous they may have been, 
could not have been reviewed in proceedings for a man- 
damus.— People vs. Pratt, 28 Cal., p. 166; Cariaga vs. 
Dryden, 29 Cal., p. 307. But if the Court refused to 
act in the case, the question whether it rightfully so 
refused may be entertained in this proceeding. — Beguhl 
vs. Swan, 39 Cal., p. 411. Where the District Court 



4r-V0L. I. 



r 



'M CODB OF ClYIL FbOOEBUBB. 

has ordered a cause commoioed tiierein to be trans- 
Jerred to the United States Circuit Court, the Supreme 
A Court has no jurisdiction to issue a writ of mandate to 
compel tiie District Judge to proceed with the trial of 
the cause. — Francisco ts. M. I. Co., 96 Cal., p. 283. 

25. Webk bt Cebtioiiari.— a writ of certiorari 
will not lie to an inferior Court to annul an order 
which is merely erroneous, but not Toid in a matter of 
^hich such Court has* acquired jurisdiction. — People 
"VS. Elkins, 40 Cal., p. 647p 

26. JxruftBiGTioif iw Injttnctiojv ProcSKdikos. — 
It is well settled that under our judicial system one 
Oourt lias no jurisdiction to ei^oin the execution of a 
decree of another Court >of coordinate jurisdiction^ 
unless it plainly appear that the Court rendering the 
judgment or decree under ,which proceedings are sought 
to be stayed **is unable by reason of its jurisdicticm to 
afford the relief sought.' ' — ^Anthtxiy vs. Dunlap, 8 Cal., 
p. 27; Bickett vs. Johnson, 8 Cal., p. 35; Chipman vs. 
Hibbard, 8 Cal., p. 270; Gorham vs. Toomey, Cal.^ 
p. 77; Uhlfelder vs. Leyy, 9 Cal., p. 614; Hockstacker 
vs. Levy, II Cal., p. 76; Grant vs. Quick, 5 Sandf., p. 
.612. The fact that parties to an injunction proceeding 
are not the same as the parties to the judgment or 
decree sought to be enjoined, does not relieve the case 
from the operation of this rule, nor can the consent of 
.the parties change the rule. It is established and en- 
forced not so much to protect the rights of the parties 
as to protect the rights of the Courts of coordinate 
jurisdiction to avoid conflict of jurisdiction, confusion, 
and delay in the administration of justice.— Bevalk vs. 
Mraemer,.8 Cal., p. 71. Proceedings for such purpose 
should always be commenced in the Court rendering 

:tlLe judgment or decree and having control of its exe- 
outicMQ. — Crowley vs. Davis, 37 Cal., p. 268. 

27. JUBISDICTION IK InIUVCTIOK PBOCEBDIKGfi.— 

A Court has jurisdiction to issue a restraining order 
when at the time of issuance there was a suit pending 
between the parties.— Pradw vs. Purkett, 13 Cal., p. 
588. 

28. ^XFLAKATIOK OT EXGLUBIVB AND COKOTXB- 

BSNT JuBiBBicTioir.— Thbib Ebfbot.— There is noth- 
ing in the nature of jurisdiction as i^pplied to Courts 
which renders it exclusive. It is not like a grant of 
property which cannot have several owners at the same 
tioie. It is a matter of common experience that two 
or more Courts may have concurreut powers over the 
same parties and the same subject matter. Jurisdio- 
tion is not a right or a privilege belonging to tiie Judge, 



1 



Code of Civil Procedure. SS 

but an authority or power to do justice in a given case, 
when it is brought before him. There is no instance in 
the whole history of the law where the mere grant of 
jurisdiction to a particular Court without any words of 
exclusion has been held to oust any other Court of the 
powers which it before possessed. Creating a new 
forum with concurrent jurisdiction may have the effect 
of withdrawing from the Courts which before existed 
a portion of the cause which would otherwise have been 
brought before them, but it cannot affect the power of 
the old Courts to administer justice when it is demanded 
at their hands. — Courtwright vs. B. B. & A. W. & M. 
Co.rso Cal., p. 580; quoting from Delatield vs. State 
of Illinois, 2 Hill, p. 164. 

29. Exclusive Jurisdictiok.— Where a new right 
is provided by law, together with a particular remedy 
for its violation, and the statute prescribes that the 
remedy must be pursued in a certain Court, the juris- 
diction on Ih^t subject is exclusive in such Court. — 
Reed vs. Omnibus B. B. Co., 33 Cal., p. 212. 

30. Concurrent Jurisdiction. — Where the Consti- 
tution grants original jurisdiction of a particular class 
of cases to one Court, without expressly excluding 
other Courts fromexercbing any jurisdiction therein, 
those other Courts are not for that reason necessarily 
excluded from exercising concurrent jurisdiction in the 
same class of cases.— Courtwright vs. B. R. & A. W. 
& M. Co. (commenting on and in some particulars 
overruling Zander vs. Goe, 5 Cal., p. 230; Caulfield vs. 
Stevens, 28 Cal., p. 118; while the cases of Perry vs. 
Ames, 26 Cal., p.«383; Conant vs. Conant, 10 Cal., p. 
249, in matters of concurrent jurisdiction, etc., are ap- 
proved). 

81. Concurrent Jurisdiction op Equity and Law 
CouRTB. — Where Courts of law and equity have con- 
current jurisdiction, if a Court of law has first acquired 
jurisdiction and decided a case, a Court of equity will 
not interfere to set aside the judgment, unless the party 
)ias been prevented by some fraud or accident from 
availing himself of the defense at law.— Dutil vs. Pa- 
checo, 21 Cal., p. 438; Truly vs. Hanson, 5 How. U. 
S., p. 141; Allen vs. Hopson, 1 Freeman, p. 276; 
Wharton vs. Wood,. 22 Wend., p. 524; Smith vs. Mc- 

* 

Iver, 9 Wheat., p. 532; Haydon vs. Gordon, 17 Leigh., 
p. 157. 

82. Equity and Law Jurisdiction over Fraud. 
A Court of equity will take jurisjdiction in cases of 
j&^ud, even if founded qji the express provisions of 
statutes, and especially to guard against the fraudulent 



"^J 



28 CoDK OF Civil Procedurb. 

acts of a debtor. — Heyneman vs. Pannenberg, 6 Cal., 
p. 376; Adams vs. Woods, 8 Cal., p. 156. Equity 
exercis.es concurrent jurisdiction with Courts of law in 
questions involving fraud, accident, or confidence, and 
there are cases where, even though an action at law 
might be maintained, yet a bill in equity is equally 
proper. — See N. Y. Ins. Co. vs. Bowlet, 24 Wend., p. 
605; Storey £q., p. 64; People vs. Houghtaling, 7 Cal., 
p. 348. 

33. Equity Jurisdiction, SpKCiric Pkrformakck, 
ETC. — The ground of the interference of chancery in 
bills quia timet, and to enforce the specific execution 
of an agreement, is that there is no other adequate rem- 
edy. If a plain, speedy, unembarrassed remedy exists 
at law, equity will not interfere. As a general rule, 
equity will not interfere in cases sounding in damages. 

But there are exceptions to this rule. See vs. 

, 3 Atk., p. 384; vs. , 1 Sim. 

& Stu., p. 607; — ' vs. , 3 Atk., p. 383. 

In these exceptional cases, the jurisdiction is put on the 
ground that compensation in dnmages would not afford 
a full, complete, and satisfactory remedy, and it is 
denied when this is attainable at law. The jurisdiction 
attaches also in cases of apprehended injury, as by 
sureties, etc., where no loss has as yet followed. — 2 Story 
Eq., p. 35. It has been held that in cases of a general 
covenant to indemnify, although sounding in damages, 
equity will decree specific performance. See Banelaugh 
vs. Hayes, 1 Vernon, p. 189; Champion vs. Brown, 6 
Johns., Chap. 389; Chamberlain vs. Blue, 6 Blackf., 
p. 491; White vs. Pratt, 13 Cal., p. 521. But equity 
will not assume jurisdiction where a remedy at law 
exists, and compel the surrender or cancellation, or 
enjoin the collection of a promissory note or other 
instrument. — Smith vs. Sparrow, 13 Cal., p. 596, aff*g 
Lewis vs. Tobias, 10 Cal., p. 574. See authorities cited 
in last named case. 

34. Equity Jurisdiction over Judgments fraud- 
ulently Altered, etc. — When a judgment was ren- 
dered, and afterwards fraudulently altered so as to 
include a new party not in the first instance included in 
the judgment and who had never been served with 
process, equity has jurisdiction of the case and may 
vacate the judgment. (The remedy by appeal might 
sufiftce in ordinary cases where there was a want of 
service. See fcLcts of case,) It made no difiTerence 
that the judgment was void on its fkce, as the parly 
was liable to be harassed by it and it was about to be 




Code op Civil Prockdurb. 29 

enforced against him. — Chester vs. Miller, 13 Cal., p. 
558. 

35. Equity Jurisdiction complete between 
paetnership and individual creditors. — a 
Court of equity has jurisdiction in cases where there is 
a conflict between partnership and individual cred- 
itors. — Conroy vs. Woods, 13 Cal., p. 626; Place vs. 
Sweetzer, 16 Ohio, p. 142; Washburn vs. Bank Bel- 
lows Falls, 19 Vt., pp. 27a-286. 

36. Equity Jurisdiction to decree execution 
OF Deed, etc.— The jurisdiction of a Court of equity, 

I to decree a reexecution of a deed, is unquestionable. 

i The jurisdiction is maintained in such cases where the 

I destruction would create a defect in the deraignment of 

I the party's title and thus embarrass the assertion of his 

rights to the property. — Cummings vs. Coe, 10 Cal., p. 
529. 
I 37. Equity Jurisdiction to decree Alimony.— 

I A Court of equity has jurisdiction to decree alimony 

I in an action which has no reference to a divorce or sep- 

aration. — Galland vs. Galland, 38 Cal., p. 265; see 
dissenting opinion in same case. 
I 38. Jurisdiction of Court over infants in par- 

tition SUITS. — The proceeding for partition is a special 
j proceeding, and the statute prescribes its course and 

' eflect; and though after jurisdiction has attached errors 

I in the course of the cause cannot be collaterally shown 

to impeach a judgment, yet, so far at least as the rights 
of infants are involved, the Court has no jurisdiction, 
except over the matter of partition, and has no power 
to render a decree divesting an infant's estate, not for 
I the purpose of partition, but upon an adverse claim 

by other parties. — Waterman vs. Lawrence, 19 Cal., 
p. 210. 

39. Jurisdiction of Courts over Fugitives from 
JUSTICE from other States.— A Court of general 
original jurisdiction, exercising the usual powers of a 
common law Court, has jurisdiction to hear and de- 
termine all matters, and to issue all necessary writs 
for the arrest and transfer of a fugitive criminal to 
the authorized agent of the State from whence he fled. 
Where a right is established by law such Courts can 
apply the appropriate remedy and issue the' necessary 
writs without special legislation. — Matter of Komaine, 
23 Cal., p. 585. 

40. Jurisdiction to review Judgment on af- * 

PEAL lost, if appeal IS NOT TAKEN IN TIME.— If a 

Court has jurisdiction to review a judgment on an 




80 Code op Civil Procedure. 

appeal taken within one year after rendition of the 
same, yet that juriEdiction is lost at the expiration of 
the year.—Haight vo. Gay, 8 Cal., p. 297; afB'd in 
Milliken vs. Huber, 21 Cai., p. 166. . 

41. Effect of adjoukkment of Coukt fob tebm 
ok its jubibdiction of casks fekdiko akd dk- 
CIDED. — A Court does not lose juri»-diction by adjourn- 
ment before the case has been finally determined ; and 
the Court may vacate a default if final judgment has 
not been entered, even though the Court has adjourned 
for the term. — Wilson vs. Cleaveland, 80 Cal., p. 198 
(and De Castro vs. Richardson, 26 Cal., p. 49; and Will- 
son vs. McEvoy, id., p. 169, were held not to be incon- 
sistent with this ruling). In a proceeding to condemn 
land, the District Court did not lose its power or control 
over the case by reason of its adjournments at anytime. 
It was unfinished business, and necessarily continued in 
Court until the deed was made and the money paid over 
under the order of the Court. — Stanford vs. Worn, 27 
Cal., p. 174. 

42. JrmisDicTiON OF Coubts oveb gases decided 
IS lost by adjovbkmkkt fob the tebm.— -After the 
ac^oumment of the term the Court loses all control 
over cases decided, unless its jurisdiction is saved by 
some motion or proceeding at the time, except in the 
single case provided by statute, where the summons 
has not been served, in which the party is allowed six 
months to move to set the judgment aside (Suydam vs. 
Pitcher, 4 Cal., p. 280; Robb vs. Robb, 6 Cal., p. 21; 
Morrison vs. Dapman, 3 Cal., p. 225; Shaw vs. Mc- 
Gregor, 8 Cal., p. 521; Bell vs. Thompson, 19 Cal., p. 
706; Lattimer vs. Ryan, 20 Cal., p. 682); but the Court 
has power to make an order nunc pro tunc, or to correct 
a mere clerical error .r— Swain vs. Naglee, 19 Cal., p. 
127; De Castro vs. Richardson, 25 Cal., p. 49; see Will- 
son vs. McEvoy, 25 Cal., p. 169. 

43. Whbre okneral Jubtsdictiok exists Coubt 
has full jubisdictiox ik all pabticulabs of the 
CASE. — When a Court has general jurisdiction of a 
subject it has power to make a full disposition of the 
matter and conclude litigation respecting it. — Kennedy 
vs. Hammer, 19 Cal., p. 387. 

44. JUBISDICTION CANNOT BE CONFEBBED BY 

AGTREEMENT OF PABTIES. — A Stipulation by parties 
waiving all objections to jurisdiction cannot confer 
on a District Court jurisdiction to try a cause in one 
county when by operation of law the Court is ad- 
journed in that county and its term commenced in 
another.— Bates vs. Gage, 40 Cal., p. 184; Smith vs. 



■. I 

N 
OoDS OF Civil Procedxtbb. SI 

CkicHester, I Oal., p. 409; Bominquefl vs. Dominques, 
4 OaU P* 1S6; Norwood vs. Kenfield, 34 Gal., p. 829. 
To stutain a personal judgment the Court must have 
jurifldietioii of the subjeet matter and of the person. 
Where the jurisdiction of the Court, as to the subject 
Matter, has been limited by the Constitution or by stat- 
atCy the consent of parties cannot confer jurisdiction. 
But when the limit reii^rds eettotfi persons, they may, 
if competent, waive their privilege, and this will give 
the Court jurisdiction. 11^ however, a party has not 
been brought into Court* and does not of himself come 
in and waive the necessity of service, the Court has no 
jurisdiction over him. — Gray vs. Hawes, 8 Cal., p. 562. 
There ie in these cases, however, a decided distinction 
between want of jurisdiction and irregularity in procur- 
ing jurisdiction.— Whit well vs. Barbier, 7 Cal., p. 6S. 

4&. JURIBDICTIOV CAKVOT BK IHVK6TSD BY AORBB- 

MBNT OF PARTI E8.~The agreements of parties cannot 
divest Courts of law or equity of their proper jurisdic- 
tion. — Muldrow vs. Norris, 2 Cal., p. 74. The consent 
of parties cannot alter the jurisdiction of Courts. — 
Biddle Boggs vs. Merced Mining Co., 14 Cal., p. 279. 
Nor can aily stipulation made by them affect their 
jurisdiction. — Reed vs. Bemal, 40 Cal., p. 628. 

46. Jurisdiction by Publicatioit of Summonb.— 
The statutoiy provisions for acquiring jurisdiction of 
the person of the defendant, by publication of the sum- 
mons instead of a personal service, must be strictly 
pursued. — People vs. Huber, 20 Cal., p. 81; Jordan vs. 
Oiblin, 12 Cal., p. 100; Evertson vs. Thomas, 5 How. 
Pr. Bep., p. 46; Kendall vs. Washburn, 14 How. Pr. 
Sep., p. 980. 

47. Jurisdiction in oasbs of Publication, No- 
TiCB, Summons, btc— Stanford vs. Worn, 27 Cal., p. 
174; Steinbach vs. Tease, 27 Cal., p. 295; McMinn vs. 
Whelan, 27 Cal., p. 800; Braly vs. Seaman, 90 Cal., p. 
§10; Sharp vs. Daugney, 38»Cal., p. 507; Townsend vs. 
Tallant, 88 Cal., p. 46; Hahn vs. Kelly, 84 Cal., p. 391; 
Quivey vs. Porter, 87 Cal., p. 456; McDonald vs. Katz, 
31 Cal., p. 169; Forbes vs. Hyde, 31 Cal., p. 842; Eitel 
vs. Foote, 89 Cal., p. 439; see Sees. 1010-1017, post, 
inclusive. 

4R. Jurisdiction by appearance of pXbty in 
Court. — A Court has jurisdiction of the person where 
he voluntarily put in an appearance without the issuance 
of summons. — Hayes vs. Shattuck, 21 Cal., p. 51. 

49. Jurisdiction of the person by Appearance 
IN AN action— What is an Appearance?— See Sec. 



I 



/ 

^ 32 CJoDB OP Civil Procbdukk. 

1014, potit; Steinbach YS. Teese, |27.Gal., p. 295; Seal 
Y8. McLaughlin, 28 Cal., p. 668; Bee Sec. 406, post. 

50. JURISDICTIOK BY ADMISSION OF 6EBYICB. — ScO 

Sharp Y8. Brunnin/j^, 35 Cal., p. 528. 

51. Jurisdiction oyer persons appearing bt 
ATTORNEY. — Couit acquires jurisdiction only of those 
for whom the attorney finally appears. — Forbes vs. 
Hyde, 31 Cal., p. 342. 

52. Jurisdiction of special cases— Actions to 
Abate Nuisance. — The Constitution permits tbe 
Legislature to confer on County Courts .jurisdiction in 
'* special cases;'' but the term ** special cases " was not 
meant to include any class of cases for which the Courts 
of general jurisdiction had always supplied a remedy. 
The special cases, therefore, must be confined to such 
new cases as are the creation of statutes and tbe pro- 
ceedings under which are unknown to the general 
framework of Courts of common law and equity. The 
action to prevent or abate nuisances is not one of these, 

. and is amply provided for in Courts of general juris- 
diction. In conferring this power upon County Courts 
the Legislature exceeded its constitutional authority, 
and the portion of the Act which contains it is invalid. 
Parsons vs. Tuolumne Water Co., 5 Cal., p. 43; see, 
however, Jacks vs. Days, 15 Cal., p. 91. 

63. Jurisdiction of Inferior Courts. — Inferior 
Courts cannot go beyond the authority conferred upon 
them by the statute under which they act. — Winter vs. 
Fitzpatrick, 35 Cal., p. 278. 

54. Jurisdiction of Court of Executive of the 
State by Writ of Mandate, etc.— Courts having 
jurisdiction of writ of mandamus may issue such a writ 
to the Grovemor to compel him to perform certain min- 
isterial acts. — Harpending vs. Haight, 39 Cal., p. 189. 
(Temple, J., dissenting in an elaborate opinion.) Under 
the distribution of powers by the Constitution the judi- 
ciary are not denied jurisdiction in cases where a fugi- 
tive from justice from another State is held in custody 
by virtue of a warrant issued by the Executive of this 
State. The very object of the habeas corpus was to 
reach just such cases, and while the Courts of the State 
possess no power to control the Executive discretion 
and compel a surrender, yet he having once acted, that 
discretion may be examined into in every case where 
the liberty of the subject is involved.— Matter of Peter 
B. Manchester, 5 Cal., p. 238. 

65. Jurisdiction of Courts to inquire into 
Legislative Proceedings, Constitutionality op 
Laws, etc. — ^Many provisions of the Constitution are 



CoDB OP Civil Procedure. 38 

addressed solely to the legislative- department, and it 
may be said that all those provisionft which require the 
Legislature to do certain things, leaving the means and 
manner within the legislative discretion, are entirely 
beyond the reach of the Judiciary, whose functions are 
wholly different from those of the law-making power. 
Some of the restrictions upon the powers of that body 
are addressed solely to the Legislature. As an instance, 
I may mention those provisions relating to the qualifi- 
cations, elections, and returns of its own members; 
and although the Constitution expressly requires cer- 
tain qualifications to constitute a member of either 
House, yet each House is expressly 'constituted the 
exclusive judge of those questions, and this Court could 
not, in any manner, review such a decision. The true 
rule seems to be this: that when the right to determine 
the extent and effect of the restriction is either ex- 
pressly or by necessary implication confided to the 
Legislature, then the Judiciary has no right to interfere 
with the legislative construction, but must take it to be 
correct. But in all other cases or restriction it is the 
.right and duty of this Court to decide the effect and 
extent of the restriction in the last resort. And as to 
the question whether the right to determine the extent 
and effect of the restriction is vested in the Legislature 
or in the Judiciary, this Court must equally determine 
in the last resort. — Nougues vs. Douglass, 7 Cal., p. 65; 
see, also. Ex Parte Shrader, S3 Cal., p. 279. But a 
Court cannot review the action of the Legislature upon 
a question whether or not a certain enterprise (such as • 
a railroad) is a public benefit or use. The legislative 
declaration seems to be held final as to such matters. — 
Napa V- R. R. Co. vs. Napa Co., SO Cal., p. 4S7; 
also, as to jurisdiction of the Supreme Court over a 
legislative Act declaring certain improvements a ** pub- 
lic use," see Sherman vs. Buick, 32 Cal., p. 241. 

56. PowBS OF Leoiblaturs oykb Courts and 
Judicial Ofpicers. — ^A special law directing a cer- 
tain Court to grant an order transferring an indictment 
pending therein against a party, for murder, to another 
District Court, is constitutional. — Smith vs. Judge of 
Twelfth Jud. Dist., 17 Cal., p. 547. This case also 
comments on the general power of the Legislature over 
Courts. It has been held that the Legislature can 
impose no duties upon the Judiciary but such as are of 
a judicial character. The Legislature cannot delegate 
to a Court the power of establishing town governments 



5— Vol, L 



84 



Oomtsof 
record. 



Code op Civil Procedure. 

or incorporating colleges and the like. — People vs. 
To^ of Nevada, 6 Cal., p. 143; Burgoyne vs. Super- 
visors of San Francisco, 5 Cal., p. 9; Phelan vs. San 
Francisco, 20 Cal., p. 39; affirming s. c, 6 Cal., p. 331. 
Nor can it authorize a County Judge to designate the 
time and place of holding an election ; such is not a 
judicial act. — Dickey vs. Hurlhurt, 5 Cal., p. 343. 

57. Miscellaneous. — See, also, as to jurisdiction, 
etc., of the several Courts mentioned, Sees. 42, 43, 44, 
57, 84, 85, 86, 97, 106, 114, 115, 116, 117, 121, 128, 129, 
165, 187, 259, post, and notes. 

34. The Courts enumerated in the first six subdi- 
visions of the preceding section are Courts of record. 

Note.— Hahn vs. Kelly, 34 Cal., p. 391. 



CHAPTER IL 



Members 
of tho 
Court. 



Jarisdio- 
tion. 



Officers of 
the Court 



OP THE COURT FOR THE TRIAL OF IMPEACHMENTS. 

SscTiOK 35. Memhers of the Court. 

36. Jurisdiction. 

37. Officers of the Court. 

38. Trial of impeachments proyided for in Penal Code. 

35. The Court for the trial of impeachments is 
composed of the members of the Senate, or a majority 
of them. 

36. The Court has power to try impeachments, 
when presented by the Assembly, of the Governor, 
Lieutenant Governor, Secretary of State, Controller, 
Treasurer, Attorney General, Surveyor General, Jus- 
tices of the Supreme Court, and Judges of the Dis- 
trict Courts, for any misdemeanor in office. 

Note. — Const., Art. 4, Sec. 18, 

37. The officers of the Senate are the officers of 
the Court. 



38. Proceedings on the trial of impeachments are 



Trial of 
impeaoh- 

mSvided provided for in The Penal Code. 

for in Penal ^ 

^^^ NoTB.— See Penal Code, Sees. 737-753, inclusive. 



Code of Civil Procedure. 35 

CHAPTER m. 

OF THE SUPREME COURT. 

I Skction 40. Members of the Court. 

41. Chief Justice. 

42. Jurisdiction of two kinds. 

43. Original jurisdiction. 

44. Appellate jurisdiction. 

45. May reverse, affirm, or modify, etc., remittitur. 

40. Number of Judges necessary for the transaction of 
business. 

47. Number to pronounce judgment. 

48. Court always open for certain purposes. 

49. Terms, when held. Additional terms. 

50. Terms, where held. 

I 

40. The Supreme Court consists of a Chief Justice Mombors 

'■ of the 

and four Associate Justices, elected at the judicial ^»*^ 
elections, and holding their offices for the term of ten 
years from the first day of January next after their 
election. 

Note. — Const., Art VI, Sees. 2, 3. In the case of 
The People vs. Wells, 2 Cal., p. 198, the que^^tion was 
raised whether, in the case where a Judge was absent 
from the State, the Legislature could authorize th^ ^ 
Governor to make an appointment during the tem-v'' 
I porary absence of such Judge. The question was not \tn L 

' decided at the time, the Court disagreeing, but was // 

I afterward considered, and it was decided (s. c, 2 Cal., -y \ 

' p. 610) that such an absence was not a vacancy in office ^> . 

which could be filled by appointment of the Governor, ^ 

and that a law authorizing such an appointment was 
unconstitutional. 

Who are elegible to the office of Justice of the 
Supreme Court. — See Sec, 166, post. 

4rl . The Justice having the shortest term to serve chiof 

JosticOi 

is the Chief Justice. 

Note.— The Act of April 20, 1863 (Stats. 1863, p. 333, 
Sec. 3), declares that ** the Justice who has been longest 
in commission shall be Chief Justice.'' This section 
departs from this language, and conforms to that of the 
Constitution. — Art. VI, Sec. 3. Cases must arise where 
the term of two or more Justices expire at the same 
time; and in order to determine such questions in 



86 Code of Civil Procedure. 

future, AS well as to settle one which had already arisen, 
the Legislature of 1871-2 passed the following Act: 

An Act to determine who must act as Chief Justice of 

the Supreme Court. 

[Approved March 14, 1872.] 

[Enacting clause.] 

Section 1. That Justice of the Supreme Court, 
elected by the people, who has the shortest term to 
serve under his commission is the Chief Justice after 
the expiration of the teim of the present Chief Justice. 

Sec. 2. In case two or more of the Justices of the 
Supreme Court shall be equally entitled to the office of 
Chief Justice after the expiration of the term of the 
present Chief Justice, and neither of the two shall 
voluntarily and in writing waive his right to be such 
Chief Justice, then such Justices shall determine by 
lot which of them shall hold such office, and a record 
of the allotment or waiver shall be entered in the 
minutes of the Court, and a certified copy thereof shall 
be transmitted to the Secretary of State, and be filed 
in his office. 

Jurisdic- 42. The jurisdiction of this Court is of two kinds: 

tioB of two 

kinds. 1. Original; and, 

2. Appellate. 

pri^nai V^^ 43. Its original jurisdiction extends to the issu- 
tion. ^J^nce of writs of mandate, review, prohibition, habeas 
corpus, and all writs necessary to the exercise of its 
ppellate jurisdiction. 

Note.— Const., Art VI., Sec. 4; Stats. 1863, p. 334. 
The provisions, that the writ of habeas corpus may be 
issued by each of the Justices, and made returnable 
before the Court, or any Justice thereof, or before any 
District Court, etc., relates rather to practice than 
power of the Court, and has been inserted in the Penal 
Code, under the Chapter relating to habeas corpus, 
Part II, Title XII. 

1. Issuance of the Writs generally. — Before 
the amendments of 1862, to Article VI of the State 
Constitution, the Supreme Court had only appellate 
jurisdiction to issue any of the writs mentioned in the 
text, except habeas corpus. But the Supreme Court, 
even then, might issue any of these writs in aid of its 
appellate powers. — See Ex Parte Attorney General, 1 
Cal., p. 85; White vs. Lighthall, 1 Cal., p. 847; Peo- 



^ 






CoDB OF Civil Procedure. 37 

pie vs. Turner, ] Cal., p. 143; g. c, 1 Cal., p. 152; Peo- 
ple vs. Shear, 7 Cal., p. 139; Warner vs. Hall, 1 Cal., 
p. 90; Piircell vs. McKune, 14 Cal., p. Ii30; Milikin vs. 
Hubdr, '21 Cal., p. 1(36. Since the amendments to the 
Con^jtitution it has original Juri.^diction to issue th<=)se 
writs. — Tyler vs. Houghton, 25 Cal., p. 20; Miller vs. 
Supervisors Sacramento Co., 25 Cal., p. 93. See the 
above cited cajies as to when these writs lie. 

2. Writ of Mandate (Mandamus). — See cases 
cited above, and, also, People vs. W^eston, 28 Cal., p. 
040; Flagley vs. Hubbai-d, 22 Cal., p. 30; People vs. 
Judge of Twelfth Di.^twct, 17 Cal., p. 547; People vs. 
Sexton, 24 CAl., p. 7U; People vs. Pratt, 28 Cal., p. 
160; Hopper vs. Kalkman, 17 Cal., p. 517; Brooks vs. 
Calderwood, 19 Cal., p. 124; Francisco vs. M. I. Co., 
36 Cal., p. 283. It will compel the performance of a 
ministerial act. — Harpending vs. Haight, 39 Cal., p. 
1st). As to when this writ lies, its effect, application, 
etc., hce Sees. 1084-1097, po>t. 

3. Writ of Review (Certiorar^). — As to cases 
where a writ of review (certiorari) has been held to 
issue, see Clary vs. Hoagland, 5 Cal., p. 476; C. N. R. 
R. Co. vs. Butte Co., 18 Cal., p. 071; Com stock vs. 
Clemens, 19 Cal,, p. 77; Murray vs. Mariposa Co., 23 
Cal., p. 492; Chard vs. Harrison, 7 Cal., p. 113; Ex 
Parte Field, 1 Cal., p. 187; People vs. Turner, 1 Cal., 
pp. 143, 152; 22 Cal., p. 465; People vs. El Dorado Co., 
fe Cal., p. 58; Miller vs. Supervisors Sacramento Co., 
25 Cal., p. 94; Hastings vs. San Francisco, 18 Cal., p. 
49. It does not lie when an appeal may be taken.— 
Clary vs. Hoagland, 13 Cal., p. 173; People vs. Shep- 
ard, 28 Cal., p. 115; Gray vs. Schapp, 4 Cal., p. 185. 
It cannot be taken before the inferior tribunal has com- 
pleted its judgment. — Wilson vs. Supervisors Sacra- 
mento Co., 3 Cal., p. 380; and i^ee, altio, as to its issu- 
ance and effect, Whitney vs. Board of Delegates S. F. 
F. D., 14 Cal., p. 479; Rt>binson vs. Supervisors Sacra- 
mento Co., 16 Cal., p. 208; El Dorado vs. Elstner, 18 
Cal., p. 144; see, also, C. P. R. R. vs. Placer Co., 82 
Cal., p. 582; g. c, 34 Cal., p. 352. 

4. Review. — The jurisdiction of the Supreme Court 
under the amended Constitution, to review the pro- 
ceedings of inferior Courts, Boards, and officers upon 
certiorari, is limited by the very nature of the writ to 
cases where the jurisdiction of the inferior Court, 
Board, or officer is impeached. — People vs. Johnson, 
30 Cal., p. 101. Certiorari, or writ of review, lies to 
review the proceedings of inferior tribunals, etc., only 
when there has been an excess of jurisdiction. — People 



88 Code of Civil Procedure. 

T8. Johnson, 30 CaU, p. 98; see Ex Parte Perkins, 18 
Cal., p. 60; Coulter vs. Stark, 7 Cal., p. 244; Ex 
Parte Hanson, 2 Cal., p. 263; People vs. Dwinelle, 
29 Cal., p. 632; Ex Parte S. V. Water Works, 17 
Cal., p. 132. But not to correct merely errors of 
law. — People vs. Burnoy, 29 CaU, p. 459. Under 
the provisions of the Constitution a writ of review 
(certioraii) can be rightfully isFued from the office of 
the Clerk of the Supreme Court only upon an order of 
the Court.— Smith vs. City of Oakland, 40 Cal., p. 481; 
see, further, Sees. 10(56-1077, post. 

5. Writ of PhomuiTiON. — Original jurisdiction of 
Supreme Court.— Tyler vs. Houghton, 25 Cal., p. 26; 
see cases cited in Note No, 1; and, also, further, Sees. 
1102-1105, post. 

6. Habeas Corpus. — See Ex Parte Rowe, 1 Cal., 
pp. 17i", 181, 184; Ex Parte Ellis, 11 Cal., p. 222; Ex 
Parte Perkins, IS Cal., p. 60; Matter of Corr^-ell, 22 
Cal., p. 178; Matter of liomaine et al., 23 Cal., p. 585; 
Mutter of Perkins, 2 Cal., p. 424; Manchester, 5 Cal., 
p. 237; People vs. Tunier, 1 Cal., pp. 143, 152; People 
vs. Smith, 1 Cal., p. 9; Edwaid Ring, 28 Cal., p. 247; 
Branigan, 19 Cal., p. 133; Bird, 19 Cnl., p. 130; Queen 
of the Ba3', 1 Cal., p. 157; Ex Parte Gihson, 31 Cal., 
p. 619; see, further, Penal Code, Sees. 1473-1505, in- 
clusive. 

Appellate 44. Its appellate jurisdiction extends: 

Junsdic' 

tion. 1. To all civil actions for relief fomierly given in 

Couits of equity; 

2. To all civil actions in which the subject of litiga- 
tion is not capable of pecuniary estimation; 

3. To all civil actions in which the subject of litiga- 
tion is capable of pecuniary estimation which involve 
the title or possession of real estate, or the legality of 
any tax, impost, assessment, toll, or municipal fine, or 
in which the demand, exclusive of interest, or the 
value of the proi)erty in controversy, amounts to three 
hundred dollars; 

4. To all special proceedings; 

5. To all cases arising in the Probate Courts; and, 

6. To all criminal actions amounting to felony, on 
questions of law alone. 



CoDB OF Civil Procedure. 39 

Note.— 1. Constructiok of the Sbction qjes- 
EBALLT. — This section is intended to clearly define the 
appellate jurisdiction of the Supreme Court. Section 
4 of Article YI of the Constitution, so far as it related to 
the appellate power, as it stood prior to amendments of 
1862, was as follows: " The Supreme Court shall have 
appellate jurisdiction in all cases where the matter in 
dispute exceeds two hundred dollars, when the legality 
of any tax or impost, or municipal fine is in question, 
and in all criminal cases amounting to felony, on ques- 
tions of law alone.  ♦*♦»» And, as amended in 1862, 
is as follows: ** The Supreme Court shall have appellate 
jurisdiction in all cases in equity; also, in all cases cU 
law which involve the title or possession of real estate, 
or the legality of any tax, impost, assessment, toll, or 
municipal fine, or in which the demand, exclusive of 
interest, or the value of the property in controversy, 
amounts to three hundred dollars; also, in all cases 
arising in the Probate Courts; and also, in all criminal 
cases amounting to felony, on questions of law alone. 
♦♦*♦*" To have simply followed the terms of 
the Constitution in defining the jurisdiction would have 
conveyed to one not familiar with the construction 
placed upon those terms by our Court of last resort, 
but a faint idea of the extent or limit of that jurisdic- 
tion. In Conant vs. Conant, 10 Cal., p. 252, which 
was an action for a divorce from the bonds of matri- 
mony by the wife against her husband, an objection 
was taken to the hearing of the appeal based upon the 
ground of want of appellate jurisdiction, because no 
question of property was Involved. Said Field, J., 
delivering the opinion of the Court: " A preliminary 
objection is taken to the hearing of the appeal, that 
this Court possesses no appellate jurisdiction in a 
case of divorce when a question of property is not 
involved in its determination. The fourth section of 
Article VI of the Constitution provides that the Supreme 
Court shall have appellate jurisdiction in cases where 
the matter in dispute exceeds two hundred dollars, 
when the legality of any tax, toll, or impost, or mu- 
nicipal fine is in question; and in all criminal cases 
amounting to felony, on questions of law alone. We 
do not understand the last words of the first clause of 
this section as restricting the jurisdiction only to those 
cases which involve questions of property, or the legality 
of a tax, toll, impost, or municipal fine. As we read 
the section, the Court possesses appellate jurisdiction 
in all cases; provided, that when the subject of litiga- 
tion is capable of pecuniary compensation, the matter 



40 Code of Civil Procbdtjrb. 



in dispute must exceed in value or amount two (now 
three) hundred dolIarSf unless the question of the legality 
of a tax, toll, impost, or municipal fine is drawn in 
question. Similar language, as to the amount, is used 
in defining the original jurisdiction of the District 
Courts. The sixth section of the same Article declares 
that * the District Courts shall have original jurisdic- 
tion, in law and equity, in all civil cases when the 
amount in dispute exceeds two (now three) hundred 
dollars, exclusive of interest.' 

"It could never have been the intention of the 
framers of the Constitution to deny to the higher 
Courts, both original and appellate, any jurisdiction 
in that large class of cases where the relief sought is 
not susceptible of pecuniary estimation, such as suits 
to prevent threatened injury, respecting' the guardian- 
ship of children, honorary ofiSces, to which no salary is 
attached, and the like. And yet, to this result the posi- 
tion of the respondent directly leads. "We think the 
construction contended for too narrow, and not impera- 
tively required by the language of the Constitution.** 

In Knowles vs. Yates, 31 Cal., p. 84, which was a pro- 
ceeding under the Act of 1850, providing for contesting 
elections, it was contended that under the amendments 
of 1862 the appellate jurisdiction of the Court was con- 
fined to the class of cases enumerated in Article IV , as 
amended, viz: 

1. To cases in equity; 

2. To the cases at law involving questions of property 
or the legality of a tax, etc.; 

3. To cases arising in the Probate Courts; 

4. To criminal cases; 

— And that therefore there was no appellate jurisdiction 
over special proceedings, or any class of cases not 
included within the Constitutional enumeration. After 
argument and reargument, the Court, Currey, C. J., 
delivering the opinion, sustained the jurisdiction. Said 
the learned Justice, speaking for the Court: 

" On the part of the respondent it is insisted that this 
section, iis amended, is a more distinct and exact lim- 
itation of the appellate powers of the Supreme Court 
than was the section as it stood in the old Constitution, 
and that the general words, * all cases at law,* are lim- 
ited and restrained by the particular words following 
in the same clause. We are of opinion, however, that 
as to the point under consideration these corresponding 
sections of the old and now Constitutions are substan- 
tially the same, so that the opinion and judgment in 
Conant vs. Conant may be regarded to be quite as 



Code of Civil Procedure. 41 

applicable to the case before us as it would have been 
had the Constitution, in the particuhtr noticed, remained 
unchanged. 

** The learned Judge, in the case referred to, seems to 
have had in mind the rules of interpretation defined by 
Rutherford, as rational and mixed. Rational interpre- 
tation is when the words of an instrument do not express 
the author's intention perfectly, but either exceed or fall 
short of it, so that the intention is to be collected from 
probable or rational conjectures only; and mixed inter- 
pretation — that is, an interpretation partly literal and 
partly rational — is when the author's words, though they 
do express his intention when rightly understood, are 
in themselves of doubtful meaning, rendering it neces- 
sary to have recourse to the like conjectures to find out 
in what sense the words were used; in which case the 
intention is collected from the words, but not without 
the help of other conjectures. — Rutherforth's Institutes, 
B. 2, Chap. 7, Sec. 3. By means of these rules of inter- 
pretation the ppirit of the text is saved from sacrifice to 
its strict letter. When the provi.<ions of a statute or of 
the organic law are clear and precise, and attended with 
no difiSculty in the application, there is no room for any 
interpretation or comment. The intention of the law- 
giver is what must be adhered to. But if the language 
of the instrument is indeterminate, vague, or suscepti- 
ble of a more or less extensive sense, we must presume 
the intention according to the laws of reason and equity; 
and for this purpose it is necessary to pay attention to 
the nature of the things to which the question relates. 
In this connection, Vattel says: * There are certain 
things in which equity admits the extension rather 
than the restriction; that is to say, that the precise 
point of the will not being discovered in the expres- 
gions of the law or contract, it is safer and more con- 
sistent with equity to suppose and fix that point in the 
more extensive than in the more limited sense of the 
terms.'— Vattel, B. 2, Chap. 17, Sec. 300. Kent says: 
*It is an established rule in the exposition of statutes, 
that the intention of the lawgiver is to be deduced from 
a \'iew of the whole, and of every part of a statute, 
taken and compared together. The real intention, 
when accurately ascertained, will always prevail over 
the literal sense of terms. "When the expression in a 
statute is special or particular, but the reason is gen- 
eral, the expression shall be deemed general;' and he 
holds that the reason and intention of the lawgiver will 



6— Vol. I. 



42 Code of Civil Procbdure. 

control the strict letter of the law when the letter would 
lead to palpable injustice, contradiction, and absur- 
dity.— 1 Kent's Com., pp. 461, 462. These authorities 
apply as ftilly to the interpretation and construction of 
constitutions as to contracts, treaties, and legislative 
enactments. 

"The Constitution of this State was created and 
adopted by a free people in order to secure to them- 
selves and their posterity the blessings of liberty. In 
the declaration of rights, the great fundamental truths 
that *all men are by nature free and independent, 
and have certain inalienable rights, among which 
are those of enjoying and defending life and lib- 
erty, acquiring, possessing, and protecting property, 
and pursuing and obtaining safety and happiness,' are 
distinctly announced; and it is declared that all politi- 
cal power is inherent in the people; that government is 
instituted for the protection, security, and benefit of the 
people, and that no person f^hall be deprived of life, 
liberty, or property, without due process of law. The 
Constitution secures to the citizen the right of sufirage, 
without which he could not exert his political power, 
and without which he would be impotent to secure to 
Wmsclf the full enjoyment of life, libertj'^, and property. 

** For the accomplishment of the objects and ends of 
the Gk^vemment of the State, its powers are divided 
into three departments, to each of which is assigned its 
appropriate functions. The judicial department is 
vested in various Courts, having either original or ap- 
pellate jurisdiction, or both, among which the Supreme 
Court is of highest authority. To it, as the Court 
of dernier ressorU it may fairly be presumed the people 
intended the citizen might go, in matters of gravest 
concern, for the enforcement of his rights, or for the 
redress of wrongs sustained. There is no right which 
is of greater value to him than his right to say by his 
vote who shall be intrusted with the exercise of the 
powers of the government in its several departments, 
because the free enjoyment of the right of choice is 
precedent and essential to the protection and security 
provided for and promised to him in the Constitution. 
Then to denj' to him the right of appeal to the highest 
tribunal of the State, in cases where he may have been 
deprived of a right which lies at the foundation of all 
others, would, it seems to us, be depriving him of a 
privilege which' it was designed by those who adopted 
the Constitution he should have and enjoy. To so 
interpret the provisions of the Constitution defining the 
jurisdiction of this Court as to close the door to his 



Code of Civil Procedure. 43 

appeal, would, in our judgment, be to refuse to appre- 
ciate the intention of the people who adopted the Con- 
stitution, as deduced from a view of it as a charter of 
our libertie!*, and would, by an adherence to the strict 
letter of the particular provision, involve us in a con- 
tradiction of the manifest design of the Constitution as 
a whole; and further, we would thereby hold that in 
cases involving rights of the highest and most sacred 
importance, the party concerned could be heard only 
in Courts of inferior grade, though reason and justice 
might demand that he should have a right of redress 
commensurate with the magnitude of the interest at 
stake. 

" In aid of the interpretation which we give to the 
section of the Constitution under consideration, we may 
refer to the exposition and practice of the judicial de- 
partment of the State Government since its organiza- 
tion. The highest Courts of original juri.^diction have 
been in the practice, from the beginning, of taking 
cognizance of cases in which the subject matter was 
not susceptible of pecuniary estimation, and concerning 
which no mention in terms was made in the Constitu- 
tion, Cases of divorce are of this class, as also suits to 
prevent threatened injuries, respecting the guardian- 
ship of children, honorary offices, and proceedings in 
the nature of writs of quo warranto; and in all such 
cases the Supreme Court, throughout the same period, 
entertained and exercised appellate jurisdiction. Con- 
temporaneous exposition has ever been esteemed by 
jurists and statesmen as strong evidence in support of 
an interpretation or construction of a statute, or of a 
provision of the organic law in consonance with such 
exposition. Contemporanea expoaitio eU fortissima 
Jn lege is a maxim of the civil law, resting for its sup- 
port on a foundation of solid reason. 

" We do not mean to be understood as holding that, 
notwitlustanding contemporaneous exposition on the 
part of the judicial tribunals and Legislatures of tl.o 
State may be cogent evidence in aid of a particular 
interpretation or construction of the Constitution, such 
interpretation or construction, even though sanctioned 
by long usage, should be upheld, if the same be dearly 
repugnant to the express and unequivocal terms of the 
instrument. It is to the words of the Constitution wo 
must have recourse in the first place to asceitain what 
may be intended by any of its provisions. Its spirit 
and intent must be collected chiefly from its words, 
and what its words mean in their relations to each other 



44 Code of Civil Procedurb. 

and to the subject matter of its provision*, it is often- 
times the office of interpretation to discover. 

"The provi.^ion of the Constitution which the Court, 
in Conant vsi. Conant, was called upon to exiwund, was 
regarded as failing to clearly define the jurisdiction of 
the Supreme Court in relation to the' subject matter of 
that case, and others ot like nature. It was considered 
as falling short of expressing the entire extent of the 
Court's appellate jurisdiction, and hence we may pre- 
sume recourse was had to other provisions of the 
Constitution and to a consideration of its grand aims 
and purposes, in order to ascertain its true meaning and 
intent. With the exposition given to the fourth section 
of the sixth Article of the old Constitution by the 
highest Court of the State, the section was amended 
and adopted by the people, but without changing it so 
as to deprive the Supreme Court of appellate jurisdic- 
tion in cases like the one before us. As we view the 
subject in all its relations, we must hold that this Court 
has not the right to decline jurisdiction in the premises. 
Perry vs. Ames, 26 Cal., pp. 383, 387." 

In constructing this section the Commii^sion kept 
steadily in view these authoritative expositions of the 
Constitution , and have endeavored to engraft their 
results upon the text of the amendment of 1862. They 
do not use the phra:>es, "cat^es in equity,*' "cases at 
law,'' and it is a little singular, to say the least, that those 
phrases were inserted in the Constitution more than 
ten years after the adoption of our Practice Act, the 
first section of which declared that there should be one 
form of civil actions, obliterating at once the distinc- 
tions between actions at law and suits in equity, abol- 
ishing the f(»rms of all such actions and placing in their 
stead the proceedings under the Practice Act. The 
continued use of those phra>es, and of the terms "eject- 
ment," "trespass," "replevin," etc., when applied to 
proceedings in our Courts, leads but to confusion, and 
has retarded the enforcement of the Practice Act in the 
spirit of its conception. An enumeration of the par- 
ticular orders, etc., which are appealable per se, is 
omitted in this part of the Code; they will be found in 
Part II, under the Title " Appeals in civil actions.*' 

2. Divorce decrek. — The Supreme Court possesses 
appellate jurisdiction from a decree rendered in a suit 
for divorce. — Conant vs. Conant, 10 Cal., p. 249. 

3. Real Property. — Cases involving title or pos- 
session of real property. — Doherty vs. Thayer, 31 Cal., 
p. 144; see, also, Paul vs. Silver, 16 Cal., p. 73. 



Code of Civil Procedure. 45 

4. Distinction between civil and criminal 

CASES involving MUNICIPAL FINE, ETC.—" CaSGS at 

law or civil actions involving legality of tax, impost, 
assessment, toll, or municipal line,*' defined and held 
to ref^r to civil eases as distinguii<hed from criminal 
cases. Supreme Court has not jurij?diction of a crim- 
inal case whenever it may be claimed the validity of a 
tax, etc., is involved. — People vs. Johnson, 30 Cal., 
p. 98. 

5. Money demands^Value of Property in 
CONTROVERSY. — Before the amendments to the Con- 
stitution (which went into effect January 1st, 18G3), 
the appellate jurisdiction of the Supreme Court 
over money demands extends only to cases where the 
amount in dispute exceeded two hundred dollars. — 
Luther vs. Ship Apollo, 1 Cal., p. 15; Simmons vs. 
Brainard, 14 Cal., p. 278; Crandall vs. Blen, 15 Cal., 
p. 406; People vs. Carman, 18 Cal., p. 698; Zabriskie 
vs. Torry, 20 Cal., p. 173; Malson vs. Vaughn, 23 Cal., 
p. 61; Skillman vs. Lachman, 23 Cal., p. 199; Meeker 
ve. Harris, 23 Cal., p. 285; Bolton vs. Landers, 27 Cal., 
p. 106. And it made no difference although the en- 
forcement of a mechanics' lien or foreclosure of a mort- 
gage by which the demand was secured was asked for 
in the same case. — Poland vs. Carrigan, 20 Cal., p. 
174. Since the adoption of the amendments (January 
1st, 1863}, the appellate jurisdiction of the Supreme 
Court has extended over money demands, etc., only 
where the amount in controversy was for the sum of 
three hundred dollars or more. — Hopkins vs. Cheese- 
man, 28 Cal., p. 180; Maxfield vs. Johnson, 30 Cal., p. 
545; Solomon vs. Reese, 34 Cal., p. 28. 

6. Definition and Explanation of Phrases— 
"Amount in Controversy," "Value of Property 
in Controversy," etc. — In Grordon vs. Ross, 2 Cal., 
p. 156, and Doyle vs. Seawall, 12 Cal., p. 280, it was 
held that costs might be added to the judgment of the 
Court below, for the purpose of conferring appellate 
jurisdiction on the Supreme Court; and if, when added, 
the total amount exceeded two hundred (now three hun- 
dred) dollars, the Supreme Court had jurisdiction on 
appeal; but these cases were overruled in Dumphy vs. 
Guindon et al., 13 Cal., p. 28, and it was held that costs 
were merely incidental to the suit, and formed no part 
of it for the purpose of an appeal. — See, too, Votan vs. 
Reese, 20 Cal., p. 89; Maxficld vs. Johnson, 30 Cal., p. 
645; Bolton vs. Landers, 27 Cal., p. 106; Zabriskie vs. 
Torrey, 20 Cal., p. 173; see, also, Conant vs. Conaiit, 
10 Cal., p. 250. It was held, also, that where the plain- 



46 Code of Civil Procedure. 

tiff is appellant and the judgment is for the defendant, 
the juriediction of the Supreme Court is determined by 
the amount claimed by the complaint, for that is the 
amount in dispute in such cases. — Gillespie vs. Benson, 

18 Cal.» p. 410; Votan vs. Reese, 20 Cal., p. 89. And 
in the last cited case it -wan said that if the appeal is 
by the plaintiff, frt^ a judgment in his favor, then the 
amount in dispute is the difference between the amount 
of the judgment and the sura claimed by the complaint; 
but this part of that decision was overruled in Solomon 
vs. Reese, 34 Cal., p. 3:3. In Skillman vs. Lachman, 
23 Cal., p. 201, ailer quoting from and commenting on 
Gillespie vs. Benson, and Votan vs. Reese, the Court 
held: **So, upon the same principle, if the appeal is 
taken by the defendant from a judgment rendered 
against him for a sum exceeding two hundred dollars, 
exclusive of costs and percentage, the Supreme Court 
had (prior to 1863, when amendments to Art. VI of 
State Constitution went into operation) jurisdiction of 
the case, because the amount of the judgment is the 
* matter in dispute ' on appeal. So, too, if the appeal 
is taken by the defendant from a judgment in his favor 
when he has set up a counter claim, if that judgment 

19 for a sum more than two (now, since 1863, three) 
hundred dollars less than he claims in his answer, this 
Court has j urisdiction . The interest due on the demand 
sued for forms a part of the amount to be included in 
the estimate of the ^amount in dispute.' *' But Justice 
Sanderson, in reviewing these cases, ^ays: **In actions 
for the recovery of money this Court has jurisdiction, 
if Hhe demand, exclusive of interest, amounts to three 
hundred dollars.' — Const., Art. VI, Sec. 4. The de- 
mand, exclusive of interest, in this case amounts to five 
hundred and fifty dollars. The language of the Consti- 
tution in respect to the jurisdiction of this Court is the 
same as it is in respect to the jurisdiction of the Dis- 
trict Court, and there can be, therefore, no difference in 
the rules by which questions as to jurisdictions of the 
subject matter are to be determined in the two Courts. 
For the purpose of ascertaining whether the District 
Court has jurisdiction we look to the complaint, and in 
this class of cases, if the sum sued for amounts to three 
hundred dollars, exclusive of interest, that Court has 
jurisdiction, and by parity of reason this Court has 
jurisdiction on appeal. The amount sued for, exclusive 
of interest, is the test of the jurisdiction of this Court, 
regardless of the judgment of the latter Court. We 
dissent entirely from the, dictum of the Court m the 
case of Votan vs. Reese, 20 Cal., p. 90, to the effect 



Code of Civil Procedure. 47 

that where the plaintiff recovers in the District Court 
less than he saes for, the test of the jurisdiction of this 
Court, in the event the plaintiff appeals, is the differ- 
ence between the judgment of the District Court and 
the demand made in the complaint, exclusive of in- 
terest. All civil cases which the District Courts have 
jurisdiction to try, this Court has jurisdiction to review, 
no matter what the judgment of the District Court may 
have been. If the plaintiff sues to recover a demand 
for five hundred dollars, and the District Court gives 
him a judgment for three hundred only, his demand 
does not thereby become converted into a demand for 
two hundred dollars for the purpose of an appeal, should 
he be dissatisfied with the judgment and desire to bring 
his case to this Court. On the contrary, in the sense of 
the Constitution his demand in this Court is precisely 
the same that it was in the Court below, and is to be 
ascertained by looking to the complaint, and not by 
deducting the judgment of the District Court from the 
demand alleged in the complaint. In other words, the 
ad damnum clause in the complaint is the test of juris- 
diction in the Court below.'* — Maxfield vs. Johnson, 30 
Cal., p. 546; Solomon vs. Beesc, 34 Cal., p. 33. 

7. Cebiiorari— Appeal from Writ op Certi- 
orari. — The Supreme Court has jurisdiction over ap- 
peals in cases of certiorari. — Morley vs. Elkins, 87 Cal., 
p. 454; see, however. People vs. Carman, 18 Cal., p. 
693. 

8. Election Cases. — The Supreme Court has ap- 
pellate jurisdiction over the decisions of County Courts 
in election cases. — Knowles vs. Yeates, 81 Cal., p. 82; 
Dickenson vs. Van Horn, 9 Cal., p. 207. 

9. Insolvency Proceedings. — It was decided in 
Eohlman vs. Wright, 6 Cal., p. 231, and in Fisk vs. 
His Creditors, 12 Cal., p. 281, not only that the Supreme 
Court had jurisdiction in error in insolvency cases, but 
that such errors might be brought up by appeal. (This 
was prior to the adoption of the amendments to Const., 
Art. VI.) The jurisdiction in error has not been with- 
drawn by the constitutional amendments. Sec. 989 
(^ 336) of the Practice Act gives an appeal from final 
judgment in special proceedings. — People vs. Shepard, 
28 Cal., p. 117. 

10. Criminal Cases. — The Supreme Court has no 
appellate jurisdiction in criminal cases of a lesser grade 
than felony (not even on a writ of error, certiorari, or 
on appeal.) — People vs. Spear, 7 Cal., p. 189; People 
vs. Vick, 7 Cal., p. 165; People vs. Applegate, 5 Cal., 
p. 295; People vs. Fowler, 9 Cal., p. 86; People vs. 



48 



Code op Civil Procedure. 



Cornell, 16 Cal., p. 187; People vs. War, 20 Cal., p. 
117; People vs. Burncy, 29 Cal., p. 459; People vs. 
Johnson, 30 Cal., p. 98. And the judgement of convic- 
tion of the lower Court, and not the indictment, deter- 
mines the character of this class of cai^es for the pur- 
poses of appeal. If the indictment be for a felony, but 
the judgment is for only a mi:>dcmeanor, the Supreme 
Court has no appellate jurisdiction. — People vs. Apgar, 
35 Cal., p. 391, and cases cited. A distinction is made 
where there is no evidence of a material fact, and 
where there is some evidence, but not enough to sus- 
tain a verdict. The Supreme Court has jurisdiction on 
appeal in criminal cases over the question, whether the 
verdict is contrary to the evidence in one case as well 
as in the other. Whether a defendant in a criminal 
action is entitled to a new trial upon the ground that 
the verdict is contrary to the evidence, is a question of 
law and not a question of fact within the meaning of 
Art. VI, Sec. 4 of the Constitution. — People vs. Jones, 
31 Cal., p. 565. See the several opinions in the case. 

11. Generally, Judgments, whetheb by de- 
fault OR OTHERWISE, SUBJECT TO APPEAL. — It Was 

held that, as to the right of appeal, there is no distinc- 
tion between judgment by default and judgment after 
issue joined and a trial. There is no force in the sug- 
gestion that the Supreme Court exorcises original in- 
stead of appellate jurisdiction, if it reviews errors on 
appeal from judgments by default. Although in such 
a case, as a matter of fact., the Court below does not 
pass upon the sufficiency of the complaint, yet as a 
matter of law it does. Though entered by the Clerk, 
without the direction of the Judge, it is as much the 
judgment of the Court as if it had been announced 
from the bench, and the defendants hre as much 
entitled to the opinion of the Supreme Court upon the 
sufficiency of the complaint as they would have been 
had they appeared and demurred. Questions of juris- 
diction and of the sufficiency of the complaint upon the 
point whether the facts stated constituted a cause of 
action are never waived in any case, and may be made 
for the first time in the Supreme Court. — Hallock vs. 
Jandin, 34 Cal., p. 173. 

12. Order refusing transfer from District 
Court to U. S. Circuit Court not Appealable.— 
It was held that from an order refusing to transfer an 
action from a District Court of this State to the Circuit 
Court of the United States no appeal lies. The remedy 
is by mandamus in such cases. — Hopper vs. Kalkman, 
17 Cal., p. 517; Brooks vs. Calderwood, 19 Cal., p. 124. 



Code op Civil Procedure. 49 

13. Law of the case. — When a decision is rendered 
in a particular case by the Supreme Court, such decis- 
ion, whether right or wrong, becomes the law of the 
ciise, and is not subject to revision on a second appeal. 
It is conclusive of the rights of the parties. — Davidson 
vs. Dallas, 15 Cal., p. 75 (see cases cited therein); Dewey 
vs. Gray, 2 Cal., p. 376; Clary vs. Hoagland, 5 Cal., p. 
476; 6 Cal., p. 685; Gunter vs. Laffan, 7 Cal., p. 592; 
Washington Bridge Co. vs. Stewart, 3 How., pp. 413, 
424; Leese vs. Clark, 20 Cal., p. 387. 

14. When Kemittitur has issued Jurisdiction 
OF CASE IS LOST. — When a remittitur has issued, and 
the Court has adjourned for the term at which judg- 
ment was given, the Supreme Court has then lost all 
further jurisdiction over the case. — Davidson vs. Dallas, 
15 Cal., p. 76. The Supreme Court has no appellate 
jurisdiction over its own judgments. — Leese vs. Clark, 
20 Cal., p. 387; but see note to Sec. 45, post. 

15. Legislature CAN REGULATE MODE OF Appeal. 
♦while the Legislature cannot substantially impair the 

right of appeal it is competent to regulate the mere 
mode in which this right must be exercifed. — Haight 
vs. Gay, 8 Cal., p. 297. And for fuller information on 
the subject of jurisdiction, see notes to Sees. 33, 43, ante, 
and 84, 85, 97, 104, 114, post. 

45. The Court may reverse, affirm, or modify any May 
order or judgment appealed from, and may direct the j^jm. or 
proper judgment or order to be entered, or direct a remittitur, 
new trial or further proceedings to be had. Its judg- 
ment must be remitted to the Court from which the 
appeal was taken. 

Note.— 1. When Court will not Reverse Judq- 
MEXT OP LOWER CouRT.— The Supreme Court wiU 
not reverse an order made by a Judge, refusing to grant 
a new trial, unless there has been a gross abuse of 
discretion in the premises. The Court wiU not review 
the verdict of a jury, where the evidence is contra- 
dictory, or where the jury refuse to give full credit to 
the testimony of witnesses. — Duel I vs. B. R. <& A. M. 
Co., 5 Cal., p. 80. The findings of a Court, etc., will 
be taken to be correct unless it clearly appears to the 
contrary. Every intendment is in favor of the correct- 
ness of ft Court of general jurisdiction unless it clearly 
appears to the contrary. — McHenry vs. Moore, 5 Cal., 

7— ToL. I. 



\ 



50 CJoDB OP Civil Procedure. 

p. 90; Ford vb. Holton, 5 Cal., p. 319; Morgan vs. 
Hugg, 5 Cal., p. 409; Ellis vs. Jeans, 26 Cal., p. 272; 
Dickenson vs. Van Honif 9 Cal., p. 207; Owen vs. 
Morton et al., 24 Gal., p. 378. 

2. Setting aside Order qrakting New Trial.. 
The Supreme Court have repeatedly decided that tho 
power to grant new trials is one of legal discretion, and 
the abuse of that discretion only will justify an inter- 
ference with the order. It is only in rare instances and 
upon very strong grounds that the Supreme Court will 
set aside an order granting a new trial. — Quinn vs. 
Kenyon, 22 Cal., p. 82. 

3. When Court will not direct Entry ot 
Final Judgment of lower Court.— The Supreme 
Court will not direct the entry of a final judgment 
when there are controverted facts to be decided. — Lick 
vs. Diaz, 37 Cal., p. 446. 

4. Correction of false or mistaken Entry ob 
Order in minutes of Supreme Court. — When 
there is a false order entered by misljike by the Clerk 
of the Supremo Court, the minutes of the Chief Jus- 
tice may be used in a direct proceeding to amend the 
record for the purposes of correcting the minutes of the 
Clerk, even after a remittitur has issued. — Vance vs. 
Pena, 36 Cal., p. 328. 

5. Correction of errors in Records gf lower 
Court. — The Supreme Court cannot correct errors in 
the records of a lower Court. Applications for that 
purpose must be made to the Court in the record of 
which the error exists. — Boston vs. Haynes, 31 Cal., p. 
107. 

6. Power of Court to make Bules. — The power 
of the Court to make rules for its government, and the 
time when such rules take effect, is provided for in 
Sees. 129, 130, post. 

Number of 46. The presence of three Justices is necessary for 
JS^ the transaction of business, but one or more of the 

for tho 

triAsaetion Justices may transact such business as can be done at 

of OQBineas. *' 

chambers, and may adjourn the Court from day to day, 
with the same effect as if all were present. 

Kumber to 47. The concurrence of three Justices is necessary 
fod^ui? to pronounce a judgment; if three do not concur, the 
case must be reheard. 






CoDB OP Civil Procedure. 51 

48. For the purpose of issuing writs of mandate, ^{J^^^ 
review, praliibition, habeas corpus, and all writs neces- cl^ln^ 
sary tothe exercise of its appellate jurisdiction, filing p'^'^'**®"' 
opinioni^ and entering orders and judgments, this Court 

18 always open and in session. 

NoTK. — People vs. Supervisors of San Francisco, 
October Term, 1872. 

49. There must be four terms in each year, for the Terms, 

- . ./ ' when held. 

"Caring of causes, to commence on the second Monday 

of January, April, July, and October. Additional Additional 

verniB. 

terms may also be held by order of the Court. 

50. The terms of this Court must be held at the "^^^^ , , " 

where held V, 

Capital of the State. If proper rooms in which to h 

hold the Coui't, and for the cliambers of the Justices, 
are not provided by the State, together with attend- 
ants, furniture, fiiel, lights, and stationery, suitable and 
sufficient for the transaction of business, the Court 
may direct the Sheriff of the county in which it is 
held to provide such rooms, attendants, furniture, fuel, 
lights, and stationery; and the expenses thereof, certi- 
fied by a majority of the Justices to be correct, must 
be paid out of the State Treasury. 

Note.— The provision of the Act of 1863 (Stats. 1863, 
p. 334), requiring the Court to give written opinions in 
important cases, has been omitted. In Houston vs. 
Williams, 13 Cal., p. 24, it was held that the constitu- 
tional duty of the Court was discharged by the rendi- 
tion of decisions; that the Legislature could no more 
require the Court to state the reasons for its decisions 
than the Court could require the Legislature to accom- 
pany the statutes with the reasons for their enactment. 
Says Justice Field: ** No such power can exist in the 
legislative department, or be sanctioned by any Court 
which has the least respect for its own dignity and 
independence." The provisions of the same Act, relat- 
ing to the *' allotment'' of the first Justices elected 
under the amendments of 1862, is omitted, having per- 
formed its office. The manner in which vacancies are 
to be filled is provided for by a section relating to 
vacancies in judicial offioes.—See Political Code, Sec. 
999. The power to make rules is placed under the gen- 



52 Code of Civil Procedure. 

eral power of Courts of record, as also are the provis- 
ions of the Act of 1863, relative to changing the place 
of holding Court in certain contingencies. — See Sece. 
129, 130, post. 

The following Act was passed by the Legislature of 
1871-2.— Stats. 1871-2, p. 391: 

An Act to regulate practice in the Supreme Cotirt. 

[ApDroved March 16, 1S72.] 
[Enacting clause.] 

Section 1. Every civil cause on appeal in the 
Supreme Court must be decided, and the decision of 
the Court filed, within six months after the same is 
submitted; if not so decided, and the decision filed, 
the cause may, on notice of either party, of at least 
thirty days, to the adverse party, be again placed on 

«.' the calendar for a rearg^iment. 

Skc. 2. Every cause which shall have been pending 

^» on appeal in said Court) for a period of six months 

prior to the taking effect of this Act, and shall have 
been submitted, shall, on notice filed and served, by 
either party, on the 'adverse party and the Clerk of the 
Court, thirty days before the commencement of the 
next succeeding term, be placed on the calendar for 
that term for reargument. 



»..* 



. CHAI^TER IV. 

OP THE DISTRICT COURTS. 

Section 54. Judicial districts. 

55. Court in each district. 

56. Judges, election and terms of. 

57. Jurisdiction. 

58. Terms of Court in the First District, 

59. Second District. 

60. Third District. 

61. Fourth District. 

62. Fifth District. 

63. Sixth District. 

64. Seventh District. 

65. Eighth District. 

66. Ninth District. 

67. Tenth District. 

68. Eleventh District. 

69. Twelfth3)i8trict. 



Code of Civil Procedure. 68 

Section 70. Thirteenth District. 

71. Fourteenth District, 

72. Fifteenth District. 

73. Sixteenth District. 

74. Seventeenth District. 

75. Terms of the District Court, where held, 

76. Duration of terms. 

77. Adjournment of the Court. 

78. Judgments may be entered in vacation. 

54. The State is divided into Seventeen Judicial Jj^dici*! 

distncts. 

Districts. 

XoTE. — Since the passage of this Code three addi- 
tional judicial districts have been formed, viz., the 
eightecntli, nineteenth, and twentieth. These affect 
the boundaries of the Third, Fourth, Twelfth, Fif- 
teenth, and Seventeenth Districts, as prescribed by 
Sec6. 60, 61, 69, 72, and 74, post.— See note to Sec. 74, 
post. 

55. There must be a District Court held in each Conrtin 

each 

of the judicial districts. ' district 

36, The Jud'2:e thereof is elected by the electors Jud«:M, 

*^ *^ election 

of the district, at the judicial elections, and holds his and terms 
office for the term of six years from the first day of 
January next succeeding his election. 

NoTK.— Tlie Constitution, Art. VI, Sec. 6, does not 
provide fully for the election of District Judges. Stat- 
utory recjulations are required to give efficacy to the 
Constitution, which is not self-executing. The Legis- 
lature h required to pass laws providing for and regu- 
lating the conduct of the election. And an election for 
District .Judge would be invalid unless made in pursu- 
ance of the .statutory regulations. — McKune vs. Weller, 
11 Cal., p. 49. See, further, for elections to fill vacancy, 
term, etc., Brodie vs. Weller, 11 Cal., p. 77; People 
v.-^. Burbank, 12 Cal., p. 378; Brodie vs. Campbell, 17 
Cal., p. 11. See Political Code, Sees. 1042, 1043. 

67. The jurisdiction of the District Coui'ts extends: Jurisdic- 
tion. 

1. To all civil actions for relief formerly given in 

Courts of equity; 

2. To all civil actions in which the subject of litiga- 
.tion is not capable of pecuniary estimation; 

3. To all civil actions (except actions of forcible 



54 Ck)DB OF Ci^^L Procedure. 

Same. entry and detainer) in which the subject of litigation 
is capable of pecuniary estimation, which involve the 
title or possession of real estate, or the legality of any 
tax, impost, assessment, toll, or municipal fine, or in 
which the demand, exclusive of interest, or the value 
of the property in controversy, amounts to three hun- 
dred dollars; 

4. To all special proceedings not within the juris- 
diction of the County and. Probate Courts, as defined 
in this Code; 

5. To the issuance of writs of mandate, review, pro- 
hibition, habeas corpus, and all writs necessary to the 
exercise of its powers; 

6. To the trial of all indictments for treason, mis- 
prision of treason, murder, and manslaughter. 

Note. — 1. Cokstruction of this Srctiox. — Sec. 6 
of Art, VI of the Constitution, which defines the juris- 
diction of the Di:itiict Court, follows the langunge (so 
far as civil jurisdiction is concerned) of Sec. 4 of the 
same Article relating to the jurisdiction of the Supreme 
» Court, and it must, from the very nature of things, 

receive the sameX'onstruction. We would look in vain, 
giving to its terms their ordinary import, for any power 
or authority- over that large class of cases in which the 
subject of litigation is incapable of pecuniar3' estima- 
tion, and which did not fall within the jurisdiction of 
Courts of equity, or over that other cla-ss known as 
special proceedings, or for the power to issift writs of 
certiorari, mandamus, or prohibition. The truth is, 
that the amendment« of 1862, in so far as they attempt 
to fix and define the jurisdiction of the several Courts 
of record, were so framed that to have given their tei ms 
any fair or reasonable construction, would have emas- 
culated our whole judicial system. To support this 
proposition we need but refer the law^'er to tlie tgrms 
of those amendments, and invoke a comparison between 
the power there conferred and the power now exercised 
by our Courts of record, and to the same end we need but 
refer the layman to the case of Knowles vs. Yates, cited 
and quoted from at length in the note to Sec. 44, ante, 
and to the able and elaborate opinion of Justice Ehodes, 
in Courtwright vs. B. R. & A. W. & M. Co., 30 Cal., 
p. 578. In the latter case, said the learned Justice, 
speaking for the Court: "It is a matter of some doubt 



Code op Civil Prpcedurb. 56 

whether that Article (Art. VI, before the amendments) 
deserved the commendation of having been drawn with 
great skill    but there is less question that the 
same cannot be said of the Article (Art. VI) as it now 
stands." See, also, Perry vs. Ames, 26 Cal., p. 883. 
The Supreme Court, by judicial construction, has fixed 
the limit of the jurisdiction of the different C!ourts. 
From the very necessities of the case that tribunal was 
driven to the adoption of the broadest rules of consti- 
tutional construction. Indeed, it may well be doubted 
whether any rule, save that of ** necessity which knows 
no law,** could have been invoked to work out the 
results at which our Courts have arrived. We have 
referred to these matters at some length in this and the 
note to Sec. 44, ante, in order to present the inherent 
difficulties surrounding the subject, aid to call the spe- 
cial attention of the profession to the questions involved. 

2. No Appellate Jurisdiction.— The Legislature 
has no power to confer appellate jurisdiction on District 
Courts. — Clary vs. Hoagland, 6 Cal., p. 688; Town- 
send vs. Brooks, 5 Cal., p. 532; Cauliield vs. Hudson, 
3 Cal., p. 389; Zander vs. Coe, 5 Cal., p. 230. The 
District Court has no appellate j urisdiction. The Legis- 
lature cannot provide for appeals from inferior Courts 
to the District Court. — ^People vs. Peralta, 8 Cal., p. 
379; Caulfield vs. Hudson, 3 Cal., p. 389; Herhandez 
vs. Simon et al., 3 Cal., p. 464; Gray vs. Schupp, 4 Cal., 
p. 185; Reed vs. McCormick, 4 Cal., p. 342; Town- 
send vs. Brooks, 5 Cal., p. 52. No appellate jurisdic- 
tion exists even from Probate Courts. — Beed vs. Mc- 
Cormick, 4 Cal., p. 342; Pond vs. Pond, 10 Cal., p. 
495. Nor can a District Court review proceedings in a 
Justice's Court if the error complained of might have 
been corrected by an appeal to the County Court. — 
Gray vs. Schupp, 4 Cal., p. 185. 

3. Admiralty Jurisdiction. — District Courts have 
admiralty jurisdiction pro tanto (Sec. 813, et seq., 
post).— Averill vs. The Hartford, 2 Cal., p. 306. 

4. Jurisdiction of Mining Claims.— Although 
jurisdiction of mining claims is given to Justices of 
the Peace, that of the District Court remains unaffected 
if the amount in controversy exceeds two hundred 
(now three hundred) dollars. — Hicks vs. Bell, 3 Cal., 
p. 224. 

^ Loses Jurisdiction of decided cause after 
ADJOURNMENT FOR Term. — A Court loses all power 
over a cause upon the acyournment of the term and 
cannot disturb its judgments, except in cases provided 



56 Code of Civil Procedure. 

by the statute.— Suy dam vs. Pitcher, 4 Cal., p. 280; 
Whipley v?. Dewey, 17 Cal., p. 314. 

6. Jurisdiction by Appearaxce.— An appearance 
entered V.y attorney is a pood and sufficient appearance 
to bind the party. Such jippeaiance amounts to an 
acknowledgment or waiver of service.— Suy dam vs. 
Pitcher. 4 Cal., p. 280. 

7. Actions to Abate Nuisances.— District Courts 
have jurisdiction in actions to abate nuisances. An act 
givinpf jurisdiction of cases of nuisance to the County 
Court cannot avail to take away the jurisdiction given 
to the District Courts by the Constitution.— Fitzgerald 
vs. Urton, 4 Cal., p. 235. District and County Courts, 
under the amended Constitution, have concurrent jurir- 
diction in actions to abate nuisance.— Courtwright vs. 
«. li. & A. W. & M. Co., 30 Cal., p. 576; Yolo Co. 
vs. City of Sacramento, 36 Cal., p. 193. An action to 
abate a nuisance is a case in equity, and the District 
Court has jurisdiction thereof, without regard to the 
amount in controversy.— Courtwright vs. B. R. & A- 
W. & M. Co., 30 Cal., p. 573. And County Courts 
have concurrent jurisdiction in these cases.- People 
vs. Moore, 29 Cal., p. 427. District Courts have juris- 
diction in cases of nuisance, and because an Act gives 
jurisdiction in like cases to the County Court it docs 
not avail to take away the jurisdiction of the District 
Court in these matters.— Fitzgerald vs. Urton, 4 Cal., 
p. 235. But it was decided that County Courts did not 
have jurisdiction in actions to abate a nuisance.— Par- 
sons vs. Tuolumne Water Cy., 5 Cal., p. 43; eee, how- 
ever. Jacks vs. Day, 15 Cal., p. 91. 

8. Forcible Entry and Unlawful Detainer.— 
District Courts have no jurisdiction in actions of 
forcible entry and unlawful detainer.— Town tend V8. 
Brooks, 5 Cal., p. 52. 

' 9. Removal of Causes from one District to 

ANOTHER.- The District Court is a Court of general 
original jurisdiction. Its process is coextensive with 
the State. Causes mAy be removed from one district 
or county to another county or district in the manner 
provided by statute. But this would not be permitted 
after the party had appeared and answered to the merits. 
Re3'es vs. Sanfcrd, 5 Cal., p. 117. 

lOi Verity of Records— Correction of Records. 
An application for mandamus was made to compel a 
District Judge to sign what was alleged by applicant 
as a true bill of exceptions, which the Judge refused 
to sign. The Judge, in answer, stated he did sign a 
bill of exceptions, which he believed to be correct. 



I Code op Civil Procedure. 67 

Applicant claims the right to try the issue by a jury. 
Heldf .such issue could not be tried by jury. The 
record of a Difetrict Court cannot be corrected by the 
verdict of a jury. Courts of such extended juris- 
diction and grave responsibility as the District Courts 
must be trui^t^id as to the fidelity of their own records. 
People vs. Judge Twelfth Judicial District, 9 ,Cal., 
p. 19. 

11. Cannot Restrain Courts of Co-ordinate 
Jurisdiction. — District Courts cannot restrain the 
execution of the judgments or orders of Courts of co- 
ordinate ju^i^diction. All such proceeding.-? must be 
had in the Courts having control of such judgments. — 
Gorham vs. Toomey, 9 Cal., p. 77; sec, also, Uhlfelder 
V-. Levy, 9 Cal., p. 607. 

12. Chanckry supervision over and control 
OF Minors. — District Courts have the same control 
over the persons of minors, as well as their estates, that 
the Courts of Chancery in England possess. The juris- 
diction is conferred by the Constitution and cannot be 
divested by any legislative enactment. — Wilson vs. 
Roach, 4 Cal., p. 366. 

13. Issues sent up formerly from Probate 
Courts. — Power of District Court over issues sent up 
from Probate Courts, and over testamentary and pro- 
bate matters generally, see Pond vs. Pond, 10 Cal., p. 
495; Deck vs. Gerke, 12 Cal., p. 433; Hope vs. Ap 
Jones, 24 Cal., p. 89. The necessary^ provisions for 
trials in the Probate Court are now made. 

14. Supervision over inferior tribunals. — The 
general power of suj^ervision over inferior tribunals 
which pertains to the Court of Kings Bench in England 
pertains to the Distiict Courts of this State. — Miliken 
vs. Ilnbor, 21 Cal., p. 169; Gumee vs. Maloney, 38 
Cal., p. 85. 

15. Action for charging excessive Railroad 
Fare. — Jurisdiction of District Court in certain actions 
provided for by statute; forfeitures imposed on railroad 
company for charging passengers excess of fare (see 
Stats. 1863, p. 296.)— Reed vs. O. R. R. Co., 33 Cal., p. 
212; Smith vs. O. R. R. Co., 36 Cal., p. 281. 

16. District Court to enter Judgment pre- 
scribed BY Supreme CouRT.^When the District 
Court is directed by the Supreme Court to enter a cer- 
tain judgment, its duty is to enter a judgment in con- 
formity with the order of the Supreme Court. — Ar- 
genti vs. Sawyer, 32 Cal., p. 414. It cannot even add 



8 — Vol. L 



58 CJoDB OF Civil Procedure. ^ 

interest to the judgment so ordered. — ^Meyer vs. Kohn, 
83 Cal., p. 4S4. 

17. Judgment of District Court to meet the 
EXIGENCIES OP the CASE. — District Courts have 
power, when not expressly limited by the Constitution 
or by statute, to pronounce such judgment as the exi- 

. gencies of each case require. — Stewart vs. Levy, 36 
Cal., p. IrtO. 

18. Court to direct payment of Fees to indi- 
gent WITNESSES IN CRIMINAL CASES. — District Courts 
may in a criminal case when witness is poor or has 
come from another county, direct the County Treas- 
urer to pay the witness such a sum as the Court may 
name. — Sargent vs. Cavis, 36 Cal., p. 552. 

19. Judgment of District Court only voii> 
WHEN in excess OF JURISDICTION.— When the District 
Court has jurisdiction of the person of the defendant 
and of the subject matter of the action, its judgment, 
no matter how erroneous, is not void. A judg- 
ment of a Justice's Court which was in excess of its 
jurisdiction, and therefore void, was rendered, and tlie 
District Court rendered a judgment founded upon the 
judgment rendered by the Justice of the Peace. Held: 
that though the judgment of the District Court was 
erroneous, yet it was not void, and that it was valid 
against a collateral attack. — Moore vs. Martin, 88 Cal., 
p. 436. 

20. Stipulation cannot confer Jurisdiction. — 
See Wicks vs. Ludwig, 9 Cal., p. 173. A stipulation 
by parties waiving all objections to jurisdiction cannot 
confer on a District Court jurisdiction to try a suit in 
one county, when on that day, by operation of law, the 
Court is adJQunied in that county and its term com- 
menced in another county of that district. — Bates vs. 
Gage, 40 Cal., p. 183. 

21. Jurisdiction over actions for usurpation 
of Office, Franchise, ETC.—Title to office comes 
from the will of the people as expressed through the 
ballot box, and they have a prerogative right to enforce 
their will when it has been so expressed by excluding 
usurpers and jiutting in power such as have been chosen 
by themselves. For that purpose the Attorney Gen- 
eral, either upon his own suggestion or upon the com- 
plaint of a private party, may bring an action against 
any person who usurps, intrudes into, or unlawfully 
holds or exercises any public office, civil or military, 
or any franchise within the State. The District Court 
has jurisdiction in these cases. — People vs. Holden, 28 



Ck)DB OF Civil Procedure. 59 

Cal., p. 123. See, also, County Court jurisdiction in 
contested elections. 

22. Disposal of Community Property by one 
District Court when divorce was granted in 
ANOTHER Court. — Another Court than the one decree- 
ing a divorce may acquire jurisdiction to dispose of the 
community property if it be otherwise competent. — 
De Godey vs. De Godey, 39 Cal., p. 157. 

23. Custody of Children, Alimony, etc., in 
SUCH A CASE. — Where a wife sued for divorce the 
Judge of the Court where the suit was pending has no 
jurisdiction ** pending the action to hear and determine 
in the District Court of an adjoining county of the 
same disttict an application by the wife for an allow- 
ance pendente lite^ and for the care and custody of the 
children of the marriage." — Bennett vs. Southard, 35 
Cal., p. 691. An order for alimony and for the custody 
of the children pendente lite can only be made by the 
Court in which the action for divorce is pending. — Id. 

24. Supervision oyer Decrees, Orders, etc., 
OF inferior tribunals— Correction of Decrees 
fraudulently entered.— It was held that the Dis- 
trict Judge, whilst sitting as in an equity case, is pos- 
sessed of all the powers of a Court of Chancery. The 
District Court being a Court of general juritidiction, 
can in a case in equity, where fraud and collusion are 
charged against a Judge in entering an order or decree, 
review the same and annul it if the facts justify such a 
conclusion. Unless a Court of general juri.«diction 
possessed such a power over limited and inferior tribu- 
nals, such as Probate Courts, the rights of heirs and 
oi-phans might be at any time endangered without rem- 
edy. — Sanford vs. Head, 5 Cal., p. 297. 

25. Fraud, Accident, Mistake, etc.— The juris- 
diction of Courts of equity originally embraced all 
cases involving questions of fraud, accident, or confi- 
dence. In many cases of this sort Courts of common 
law have for a long time exercised jurisdiction, and in 
many other cases, in which anciently no such remedy 
was allowed, is now expanded so as to reach them; but 
the jurisdiction of Courts of equity is not destro^'ed or 
impaired merely because Courts of law exercise an 
equitable jurisdiction; jurisdiction in such cases is con- 
current. — People vs. Houghtaling, 7 Cal., p. 348. 

26. Suit against Administrator.- It was held, 
that an administrator might be sued in the District 
Court as a Court of equity, by the people, to compel 
him to pay over certain moneys which were collected 
by the intestate as a Tax Collector. — See People vs. 



60 Code op Civil Procedure. 

Houghtaling, 7 Cal., p. 348. The District Court has no 
jurisdiction over an action against an admintstrator 
when he attempts U) make charges against the estate 
for expenses in administering thereon. — See Giirnee vs. 
Maloney, 88 Cal., p. 85. 

27. Jurisdiction ovkk Claims against estate of 
DECEDKNT. — The fiict that a claim against the estate of 
a deceased person has not heen presented to the admin- 
istrator does not take away from the District Court 
juris-diction over Fuch claim. — Heutsch vs. Porter, 10 
Cal., p. 555; see Fallon vs. Butler, 21 Cal., p. 24, com- 
menting on the cases of Ellissen vs. Halleck, 6 Cal,, p. 
886, and Faulkner vs. Folsom's Executors, 6 Cal., p. 
412; see, also, Pechaud vs. Riquet, 21 Cal., p. 76. The 
Di^:trict Court has no juris-diction over the allowance or 
apportionment of the commissions of the executors and 
administratoi-s, and if it can interfere at all with the 
decree of the Probate Court, it can only do so as a 
Court of Chancery, and can go no further than to set 
aside the dtjcree on the ground of frauds or other like 
ground of equibible interference, and leave the parties 
to make another settlement in the Probate Court. — 
Searles vs. Scott, administrator, etc., 14 S. & M., p. 94; 
Hope vs. Ap Jones. 24 Cal., p. 89. 

28. Foreclosure of Mortqaoes upon estate or 
decedent.— District Couits have jurisdiction over an 
action for the foreclosure of mortgages upon the estates 
of decedent*, even though the debt was presented as a 
claim against the estate to the administrator or execu- 
tor, and allowed by him and also by the Probate 
Judge. If the object sought to bo attained Is to subject 
the lands raortgag(»d to sale for the satisfaction of the 
debt, and no judgment is asked to bind the estate or 
for the payment of any moneys out of the estate. — 
Overruling Ellissen vs. Halleck, 6 Cal., p. 386, and 
Faulkner vs. Folsom's Executors, 6 Cal., p. 412; Fal- 
lon vs. Butler, 21 Cal., p. 24; see, also, Pechaud vs. 
Riquet, 21 Cal., p. 7f5. In some of the earlier cases it 
was held that a mortgage creditor whose claim was 
allowed could not maintain an action in tho District 
Court for the foreclosure of his mortgage, but that his 
debt must abide the administration and settlement of 
the estate under the supervision of the Probate Court. 
Ellissen vs. Halleck, 6 Cal., p. 392; Faulkner vs. Fol- 
som's Executors, 6 Cal., p. 4 J 2. But the doctrine of 
these cases in this respect may be said to have been dis- 
approved by the Court in its later decisions, mainly, if 
not entirely, on the ground that the District Court had, 
under the Constitution as it then existed, original juris- 



CoDK OF Civil Procedure. 



61 



diction in law and equity in all cases where the amount 
in dispute exceeded two hundred dollars exclusive of 
interest.— Bel lock va. Ko^ers, 9 Cal., p. 123; Heutsch 
vs. Poller, 10 Cal., p. 559; Fallon vs. Butler, 21 Cal., 
p. 30. By the Constitution as amended it is provided 
that the District Coui-ts shall have original jurisdiction 
in all cases in equit3\ — Const., Art. VI, Sec. 6. The 
foreclosure of mortgages and the sales of preniises for 
the payment of debts thereby secured are matters of 
purely equitable cognizance. Hence, a creditor of an 
estate of a deced(»nt whose debt is secured by mortgage 
may* alter having duly presented it to the executor or 
administrator and Probate Judge, whether it be allowed 
or rejected, proceed at once to foreclose his mortgage 
in the proper Court of original equitable jurisdiction. — 
Willis vs. Farley, 24 Cal., p. 491. 

29. Kquitablk and comflete Relief to bk 
Admikistered.— It is the duty of the Court, as a 
Court of equity, while keeping within the rules and 
principles on which its remedial jurisdiction i& founded, 
to adapt its course of proceeding, as far as possible, to 
the existing state of things, and to apply its jurisdic- 
tion to all those new cases which from the diversitied 
transactions among men are continually arising, and to 
administer justice and enforce right, for which there is 
no remedy save in a Court of equity.— Taylor vs. Shimon, 
4 Myl. & Cn., p. 141; Walworth vs. Holt, id., p. 635. 
Dougherty vs. Creary, 30 Cal., p. 297. — See this case as 
to mining matters, abandonment of water, on tailings, 
etc. 

30. Enjotnino Ekection of Wharves, etc.— 
The equity jurisdiction, with which our District Courts 
are invested under the Constitution is that admin- 
istered in the High Court of Chancery, in England. — 
People vs.* Davidson, 30 Cal., p. 390; and see this case 
as to power of District Courts to enjoin erection of 
wharl's, public nuisance, and as to its equity powers 
generally. — Id. 

31. Annulment of Decree of County Court 
Condemning Land.— Powers of District Court as a 
Court of equity to annul condemnation of land for cer- 
tain uses, had by order of County Court.— See S. F. & 
A. W. Co. vs. A. W. Co., 36 Cal., p. 639. 

32. Title or Possession of Real Property. — 
Construction of the phrase **the District Court shall 
have original jurisdiction in all cases at law which 
involve the title or possession of real property.'* — See 
Holman vs. Taylor, 31 Cal., p. 338. It was held that 
it was not necessary, however, that the title or posses- 



62 Code of Civil Procedukb. 



sion be put in issue if either is alleged in the pleadinj^s 
on either side; as an isisuable fact it is sufficient to give 
the District Court jurisdiction. Actions for damagee 
without reference to the amount for trespass upon lands, 
are within the jurisdiction of the District Court. — ^Hol- 
raan vs. Taylor, 31 Cal., p. 338. But this case was 
materially modified by the same Justice in Pollock 
vs. Cummings, 38 Cal., p. 684; see, too, Doherty vs. 
Tlinj'er, 31 Cal., p. 144; see note to Sec. 114, post, 
•'Justices' Courts." Two actions were commenced in 
a Justice's Court to recover damages to real property. 
The amount claimed was two hundted dollars. The 
answer of the defendants put in issue the ownership of 
the property, and moved to transfer the cases to the 
District Court. The motions were overruled. On ap- 
peal to the County Court the order was made granting 
transfer to District Court. Held: the County Court 
had authority to transfer the cases to the District Court 
under Sec. 838 (§ 581) of the Code. The fact that 
the title of the property was involved, and not the 
amount claimed as damages, established the jurisdic- 
tion of the District Court. — CuUen vs. Langrtdge, 17 
Cal., p. 67. 

38. Legality of ant Tax, Impost, Assessmskt, 
ETC. — In People vs. Mier, 24 Cal., p. 61, the Supreme 
Court held that in actions to recover taxes (under the 
somewhat anomalous condition in which the law then 
stood— Revenue Laws 1861-62), the character of the 
action, as to whether it was a cafe at law or in equity, 
must be determined by the relief sought in the prayer 
of the complaint; and that when the amount of the 
taxes sued for was less than three hundred dollars, and 
there was no prayer for the foreclosure of the tax lien, 
order of sale, etc., the District Court had no jurisdic- 
tion.— Adhered to in Bell vs. Crippin, 28 Cal., p. 327. 
If the defense set up in an answer involves the legality 
of the tax (in an action in a Justice's Court, broug^ht 
for the recovery of a money judgment), the jurisdiction 
of the Justice would be ousted on the filing of the 
answer. — People vs. Mier, 24 Cal., p. 61. 

34. Value or Amount of Propbrtt in Contro- 
versy. — Before the amendments to the State Consti- 
tution (adopted 1862) the District Court had jurisdiction 
where the amount sued for, exclusive of interest, ex- 
ceeded two hundred dollars. — Arnold vs. Van Brunt, 4 
Cal., p. 89; Page vs. Ellis, 9 Cal., p. 248. But a judg- 
ment could be rendered for a less amount than the sum 
prescribed by the Constitution limiting the jurisdiction 
of the Court in the commencement of the action. — 



CoDB OF Civil Procbdurb. 63 

Jackfon vs. Whartenby, 5 Cal., p. M, In actions for 
the recovery of money the District Courts have juris- 
diction, if the demand in the complaint, exclusive of 
interest, amounts to three hundred dollars. — Solomon 
vs. Reese, 34 Cal., p. 32; see, particularly, Note No. 
6 to Sec. 44, ante. 

35. Insolvency Procekdings.— Proceedings in in- 
solvency (State law) are not, stricti juris, either pro- 
ceedings in law or equity, but a new remedy or 
proceeding, created by statute, the administration of 
which has been vet>tcd in the District Courts of this 
State, independent of their common law or chancery 
powers, as Courts of general jurisdiction; and second, 
whenever a new right is created by statute, and the 
enforcement of such right is committed to a Court 
even of general original jurisdiction, that such Court, 
quoad hoc, is an inferior Court, and must pursue the 
statute Ftrictly. The District Court acts as a Court of 
limited or inferior jurisdiction in these matters. — 
Cohen et al. vs. Barrett, 5 Cal., p. 195. 

36. Writs or Mandate. — District Courts have 
jurisdiction to issue writs of mandate. — Periy vs. 
Ames, 26 Cal., p. 372; Cariaga vs. Dryden, 30 Cal., p. 
246; Courtwright vs. B. R. and A. W. and M. Co., 
30 Cal., p. 573. 

37. Writ of Review (Certiorari). — District 
Courts have not jurisdiction, by certiorari (writ of 
review), over the judgment rendered in a Justice's Court 
in cases where the error might have been corrected by 
an appeal to the County Court. — Gray vs. Schupp, 4 
Cal., p. 185. When District Courts have jurifdiction 
to review cases by certiorari (or writ of review), see 
People vs. Hester, 6 Cal., p. 680 (and cases cited in 
brief of petitioner); see, further. Chard vs. Harrison, 7 
Cal., p. 113; and People vs. El Dorado Co., 8 Cal., p. 
58, overruling People vs. Hester, supra; also, examine 
Murray vs. Supervisors of Mariposa Co., 23 Cal,, p. 
402; Perry vs. Ames, 26 Cal., p. 372; Morley vs. 
Elkins, .37 Cal., p. 454; see, also, on habeas corpus. 
Perry vs. Ames, 26 Cal., p. 372. 

88. Formation of new Districts— Jurisdiction 
over causes arising previous to formation of 
District. — Where a new county is created, or a new 
district is formed by statute, the District Court of the 
new county or (of the new district) has jurisdiction to 
try all indictments for murder found in the County 
Court of the old county, but committed in the new 
county after the passage of the Act creating such new 



64 



Code of Civil Procedure. 



Terras of 
Court in 
tho Fir«t 
District 



Bocond 
Diatrict 



Third 
District 



Fourth 
District 



county, provided the trial is not had until the new 
county or district is organized. — See People vs. Mc- 
Guire, 32 CaU, p. 140. 

58. In the First Judicial District, terms of the Dis- 
trict Coui't must be held as follows: 

In the County of San Luis Obispo, on the first Mon- 
day of January, May, and Sejitember; 

In the County of Santa Barbara, on the third Mon- 
day of February, June, and October. 

69. In the Second Judicial District, terms of the 
District Court must be held as follows: 

In the County of Butte, on the firet Monday of 
March, third Monday of November, and second Mon- 
day of July; 

In the County of Lassen, on the second Monday of 
June, and second Monday of September; 

In the County of Plumas, on the fourth Monday of 
^lay, and first Monday of October; 

In the County of Tehama, on the fourth Monday of 
October, fourth Monday of January, and first Monday 
of May. 

60. In the Third Judicial District, terms of the 
District Court must be held as follows: 

In the County of Alameda, on the third Monday* of 
February, June, and October; 

In the County of Monterey, on the first Monday of 
April, and October; 

In the County of Santa Clara, on the second Mon- 
day of January, May, and September; 

In the County of Santa Cruz, on the second Monday 
of April, August, and December. 

N GTE. — See Sec. 54» ante, and note. 

61. In the Fourth Judicial District, terms of the 
District Court must be held as follows: 



Code op Civil Procedure. 65 

In the County of San Francisco, on the first Monday 
of February, May, August, and November. 

Note.— See Sec. 54, ante, and note. 

62. In the Fifth Judicial District, terms of the rm 

' District. 

District Court must be held as follows: 

In the County of San Joaquin, on the first Monday 
of February, May, and August, and on the third Mon- 
day of October; 

In the County of Stauislaus, on the second Monday 
of Jaituary, April, and September; • 

In the County of Tuolumne, on the first Monday of 
March and July, and on the third Monday of l^ovem- 
ber. 

63. In the Sixth Judicial District, terms of the girth 

' DiBtnot. 

District Court must be held as follows: 

lu the County of Sacramento, on the first Monday 
of February, April, June, August, October, and De- 
cember: • 

In the County of Yolo, on the third Monday of Jan- 
^ry, May, and September. 

64. In the Seventh Judicial District, terms of the Seventh 

Np^ . ' Distnot. 

Distnct Court must be held as follows: 
^In the County of Lake, on the third Monday of 
April, and second Monday of November; 

In the County of Marin, on the first Monday of 
March and July, and third Monday of Kovember; 

In the County of Mendocino, on the second Monday 
of April, third Monday of July, and first Monday of 
November; 

In the County of Kapa, on the first Monday of Feb- 
ruary, June, and October; 

In the County of Solano, on the third Monday of 
January, May, and September; 

In the County of Sonoma, on the third Monday of 
February, June, and October. 

9— Vol. I. 



66 



Code op Civil Pboobdubb. 



Eishth 
DiBtriot. 



Ninth 
DiBtriot 



65. In the Eighth Judicial District, terms of the 
District Court must be held as follows: 

In the County of Del iNorte, on the second Monday 
of May, August, and November; 

In the County of Humboldt, on the second Monday 
of March, June, September, and December; 

In the County of Klamath, on the second Monday 
of April, July, and October. 

66. In the Ninth Judicial District, terms of the 
Dialrict Court must be held as follows: 

In the County of Shasta, on the second Monday of 
March, June, and November; 

In the County of Siskiyou, on the third Monday of 
January, May, and September; 

In the County of Trinity, on the second Monday of 
April, August, and December. 

Note.— stats. 1871-2, p. 561. 

An Act fixing the time and places of holding the Dis- 
trict and County Courts in and for the Cfounty of 

/Siskiyou, 

[Approved Maroh 26, 1872.] 

[Enacting clause.] 

Section 1. The tenns of the District Court of the 
K in th Judicial District, in and for the County of Sis- 
Iciyou, shall be held as follows: At Yreka, oa the 
third ]tfonday of January, ]U[ay, and September of 
each year; at Lake City, on the second 3ionday of 
July of each year. 

Sec. 2. The terms of the County and Probate 
Court of the County of Siskiyou shall be held as 
follows: At Yreka, on the first Monday of January, 
March, May, September^ and November of each year; 
at Lake City, on the second Monday of July of each 
year. 

Sec. 3. For the purpose of holding the terms of the 
District and County Courts, in and for the County of  
Siskiyou, at Lake City, as provided in this Act, the 
County Clerk, Sheriff, and other officers of said Courts 
shall, at the time appointed for holding the said terms, 
proceed to Lake City and officiate the same as if the 
terms of the several Courts were held at the county 
seat; and they are hereby authorized to convey to said 



Code op Civil Procedure. 67 

Lake City all papers and documents and books neces- 
sary to be used at the said term. 

Sec. 4. All Acts or parts of Acts in conflict with 
this Act are hereby repealed. 

Sec 5. This Act shall take effect immediately. 

67. In the Tenth Judicial Distiict, terms of the Tenth 

. DUtrict 

Distnct Court must be held as follows: 

In the County of Colusa, on the first Monday of 
May, September, and December; 

In the County of Sierra, on the first Monday of 
April, second Monday of July, and fourth Monday of 
October; 

In the County of Sutter, on the fourth Monday of 
February and June, and third Monday of October; 

In the County of Yuba, on the third Monday of 
January, May, and September. 

68. In the Eleventh Judicial District, terms of Biovonth 
the District Court must be held as follows: 

In the County of Amador, on the second Monday 
of March, June, September, and December; 

In the County of Calaveras, on the second Monday 
of January, April, July, and October; 

In the County of El Dorado, on the second Monday 
of February and May, and on the third Monday of 
August and November. 

69. In the Twelfth Judicial District, terms of the Twelfth 
District Court must be held as follows: 

In the County of San Francisco, on the first Mon- 
day of January, April, July, and October; 

In the County of San Mateo, on the third Monday 
of March and fourth Monday of June, September, 
and December. 

NoTB.--Stats. 1871-2, p. 95. 

A.n Act to ftx the terms of the several (hurts of record 
in the County/ of San Mateo. 

[Approved February 18, 187&] 

[SnactinK claofie.] 

S£CTlON 1. The terms of the District Court of the 

% 



68 CJoDE OF Civil Procedure. 

Twelfth Judicial District, in nnd for the County of San 
Mateo, shall commence on the second Monday in Feb- 
ruary and the fourth Mondays in May, August, and 
November, in each year, and may be continued from 
day to day, and adjourned from time to time, as the 
business of the Court shall require. Nothing in this 
section, however, shall be construed as ending a term 
of said Twelfth District Court, in and for the City and 
County of San Francisco, by reason of the commence- 
ment or holding of a regular or a^oumed term in the 
County of San Mt^o; but whenever the Court is about 
to open in JSan Mateo County the Court in San Fran- 
cisco may be adjourned over, and at the close of the 
session in San Mateo County the business of the term 
in San Francisco may bo resumed. 

4 

See, also, note to Sec, 54, ante. 

Thirteenth 70. In the Thirteenth Judicial District, terms of 

DiBinct ^ ' 

the District Court must be held as follows: 

In the County of Fresno, on the third Monday of 
January and May, and second Monday of October; 

In the County of Mariposa, on the firat Monday of 
February, June, and October; 

In the County of Merced, on the fourth Monday of 
January, May, and September; 

In the County of Tulare, on the first Monday of 
January and May, and third Monday of October. 

Fourteenth 71. In the Fourteenth Judicial District, terms of 
the District Court must be held as follows: 

In the County of if evada, on the .second Monday of 
March, June, September, and December; 

In the County of Placer, on the first Monday of 
February, May, August, and November. 

NoTK.--Stats. 1871-2, p. 700. 

An Act regulating proceedings in Courts of record of 
Nevada County in certain cases, 

[Approrod March 30, 1872.] 

[Enacting clause.] 

 

Sbction 1. Whenever, in the discretion of the Judges 
of the District, County, or Probate Courts in and for the 
County of Nevada, the ends of justice will be promo- 
ted and expenses to the parties interested decreased by 



Code op Civil Procedure. 69 

holding Bessions of said Courts at the Town of Truckee, 
j-uch Judges may, b^' order, set a time for holding such 
stissions and trying such cases as appear regularly upon 
the docket fnr>m the Township of Meadow Lake, on the 
fiivt day of each term. 

»Sec. 2. When such sessions are held as heretofore 
provided, all the officers of the county who are required 
to attend upon the Court, the session of which has been 
appointed, shall be present at said time with all records 
and papers required in the trial of said cases in the 
respective Courts, and there perform such duties as are 
now required by law. 

Sec. 3. The Judges of the Courts herein specified 
are authorized, if in their judgment it be necessary, to 
appoint Court Commissioners at the Town of Truckee, 
who may make such orders and transact such business 
as said Judges are by law authorized to do in chambers; 
provided, that all such busine|^ must be approved by 
the Judges of said Courts. 

72. In the Fifteenth Judicial District, terms of the Fifteenth 

District 

District CJourt must be held as follows: 

In the County of Contra Costa, on the third Tuesday 
of April, July, and November; 

In the City and County of San Francisco, on the 
fipat Monday of March, June, September, and Decem- 
ber. 

NoTK. — See note to Sec. 54, ante. , 

73. In the Sixteenth Judicial District, terms of the sixteenth 

District 

District Court must be held as follows: 

In the County of Alpine, on the first Monday of 
April and October; 

In the County of Inyo, on the fii'st Monday of May 
and November; 

In the County of Kern, on the third Monday of May 
and November; 

In the County of Mono, on the third Monday of 
Aj)ril aud October. 

• 

74.' In the Seventeenth Judicial District, terms of Seven- 
teenth 
the District Court must be held as follows: Diatrict 

Li the County of Los Angeles, on the first Monday 

of February, May, August, and November; 



70 CloDB OF Civil Pkocedurb, 

In the County of San Bernardino, on the first Mon- 
day of January, Jane, and September; 

In the County of San Diego, on the firat Monday of 
April, July, and October. 

Note.— See note to Sec. 142, Political Code Cal., 
Acts of 1871>2 creating Eighteenth, Nineteenth, and 
Twentieth Judicial Districts. 

Stats. 1871-2, p. 117. 

An Act to create the Eighteenth Judicial District^ andt 

for other purposes. 

[Approvod February 20, 1872.] 

Sec. 8. The terms of the Diptrict Court of the 
Eighteenth Judicial District during each year shall 
commence as follows: In the County of San Diego, on 
the second Monday of January, April, July, and Octo- 
ber ;|^n the County of San Bernardino, on the second 
Monday of March, June, September, and December. 
Said terms shall continue until the time fixed for hold- 
ing a term in another or the same county in the dibtrict, 
if the business of the Court shall require it. 

Cited in note to Sec. 142, Political Code Cal., Vol. I. 

The terms of the Nineteenth Judicial District Court 
commence on the second Monday of April, August, 
and December of each year. — See Stats. 1871-2, i»p. 
301, 302, 303, Sec. 15, cited in note to Sec. 142, Political 
Code Cal., Vol. I. / 

The terms of the Twentieth Judicial District Court 
commence in the County of Santa Clara, on the first 
Monday of January, May, and September; in Santa 
Cruz, on the second Monday of February, June, and 
October; in Monterey, on the third Monday of April, 
August, and December of each year. — See Stats. 
1871-2, p. 303, Sec. 13, cited in note to Sec. 142, Political 
Code Cal., Vol. I. 

Stats. 1871-2, pp. 772, 773. 

An ^ct authorizing [the Board of Supervisors of the 
City and County of San Francisco to provide suit- 
able rooms, att&odants, fuely lights^ and statiojiery, 
for the Third and Nineteenth J>iMrict Courts^ in aiid 
for the City and CoutUy of San Francisco and the 
County of Alameda, 

[Approved March 30, 1872.] 

[Enacting clause.] 

Section 1. The Boai'd of Supervisors of the City 
and County of San Francisco is hereby empowered to 



Code of Civil Procbdubb. 71 

provide suitable and sufficient rooms, attendance, fiir- 
niture, fuel, lig:ht8, and stationery for holding the Dis- 
trict Courts of the Third and Nineteenth Judicial 
Districts, in and for said city and county, and the 
expoises thereof shall be paid by the Treasurer of said 
city and eounty, after having been audited by the 
Auditor thereof, ftx)m the General Fund of the county. 

75. The terms of the District tJourts must be held Tei*"^ 

the District 

at the county seats of the several counties. ^^ ^^^^ 

76. Each term must be held until the business is Duration of 

terms. 

disposed o^ or until a day fixed for the commencement 
of some other term in the district. 

Note. — A stipulation waiving all objections could 
not confer on a District Court jurisdiction to try a cause 
in one county when, by operation of law, the Court is 
acUoupned in that county and its term commenced in 
another county. — Smith vs. Chichester, 1 Cal., p. 409; 
Domingues vs. Domingues, 4 Cal., p. 186; Norwood 
vs. Kenfield, 34 Cal., tp, 329; Bates vs. Gage (affirming 
these cases), 40 Cal., p. 183. 

77. The Court may adjourn from time to time Adjoum- 

nont of 

during the term, and may, when the public con- the Court. 
venience requires, adjoum the term over the time 
fixed by law for the commencement of another term 
in the same district. 

78. Judgments and orders of this Court may be judgments 

^ . 1 . • may be 

•entered either m term or vacation. entered in 




vaoation. 



NoTK.— Stats. 1863, p. 336. 

CHAPTER V. 

OP THE COUNTT C0UBT8. 

 

SxcTiOK 82. Court in each county. 

83. Judges, election and tenns of. 
' 84. Jurisdiction of two kinds. 

85. Orif^inal jurisdiction. 

86. Appellate jurisdiction. 

87. Presumptions in favor of judgments, etc. 



72 



CoDB OF Civil Procedubb. 



Coartin 

eaeh 

coonty. 



Jud«[eSf 
election 
and terms 
ot 



7 Jurisdic- 
tion of / 
\ 4mo kiijds. 



Section 88. Terms of the County Court for the respective countiee. 

89. Court always open for certain purposes. 

90. Terms of the County Court, where held. 

82. There must be a CouDty Court held in each of 
the counties, by the County Judge thereof. 

83. The County Judge is elected by the electors 
of the county, at the judicial elections, and holds his 
office for the term of four yeare from the first day of 
January next succeeding his election. 

Note.— People vs. Templeton, 12 Cal., p. 394; Peo- 
ple vs. Martin, 12 Cal., p. 409; People vs. Porter, 6 
Cal., p. 26; People vs. Weller, 11 Cal., p. 49; West- 
brook vs. Rosborough, 14 Cal., p. 180. 

84. The jurisdiction of this Court is of two kinds: 

1. Original; and, 

2. Appellate. 

Note.— 1. Forcible Ektrt and Unlawfxtl Db- 
TAiNER. — The County Court has jurisdiction to try- 
cases arising under the Act concerning forcible entries 
and unlawful detainers on appeal, de novo; but such 
a trial or examination is an exercise of appellate, 
and not original, jurisdiction. — See Towusend vs. 
Brooks, 5 Cal., p. 52. 

2. Mechanics' Likn. — A County Court has no 
jurisdiction to enforce a mechanics* lien, if the amount 
in dispute exceeds the constitutional limitation. — Brock 
vs. Bruce, 5 Cal., p. 279. 

3. Exercise of other than Judicial Functions. 
County Courts cannot exercise other than judicial 
functions. An Act of the Legislature conferring upon 
the Court power to incorporate towns, etc., is uncon- 
stitutional. — 6 Cal., p. 143. 

4. A Bench "Warrant may be issued after an 
Indictment for Felony against a Defendant 
Admitted to Bail before the Indictment.— It is 
not intended to fetter the County Court in its jurisdic- 
tion over the person of the defendant after an indict- 
ment has been found against him by reason of any 
proceedings previously had in the premises. The 
County Court has jurisdiction, by the intervention of a 
Grand Jury, to inquire of all public offenses committed 
or triable in its county, and, upon the presentation of 
indictments by that l^dy, to make aU orders and issue 



Code of Civil Procedure. 73 

all writs authorized by law to secure the person of the 
accused, and bring him to trial in the proi>er tribunal. 
Ex Parte Henry Cook, 35 Cal., p. 107. 

5. Final Judgments—No Khmeby against Ckr- 
TAIN. — Where the County Court has final jurisdiction, 
if it commits an error in its final decision there is no 
remedy.— People vs. Weston, 28 Cal., p. 039, and 
ca.se.« cited therein; Cariaga vs. Dryden, 29 Cal., p. 
307; Lewis vs. Barclay, 35 Cal., p. 213. 

6. All Intendments in favor oy Records of 
County Court.— County Courts are Courts of general 
criminal jurisdiction, and as such all intendments are 

in favor of the regularity of their proceedings. — People , 

vs. Connor, 17 Cal., p. 3(>1; People vs. Robinson, 17 
Cal., p. 368; People vs. Hobson, 17 Cal., p. 424; Peo- 
ple vs. Lawrence, 21 Cal., p. 372; People vs. Black- 
well, 27 Cal., p. 67. 

7. Naturalization of Foreigners. — County 
Courts have jurisdiction to issue naturalization papers 
and admit foreigners to citizeni^hip. — Matter of Con- 
ner, 39 Cal., p. 98; sec, further, note to next section; see 
naturalization laws and treaties, with notes, Appendix 
to Political Code. 

85. 115 original jurisdiction extends: pnprai 

1. To actions to prevent or i^bate a nuisance; tion. 

2. To actions of forcible entry and detainer; 

3. To proceedings in insolvency; 

4. To all special cases or proceedings in which the 
law giving the remedy or authorizing the proceedings 
confers tlie jurisdiction upon it; 

5. To the issuance of writs of mandate, review, pro- 
liibition, habeas corj)Us, and all writs necessary to the 
exercise of its powei^s; 

6- To inquire, by the intervention of a Grand Jury, 
of all public oftenses committed or triable in the 
county ; 

7. To the trial of all indictments, except for treason, 
misprisiou of treason, murder, and manslaughter. 

Notk. — See notes to Sees. 44, 57, relating to jurisdic- 
tion of Supreme and District Courts. 
' I. Abatk»ient OF Nuisance AND Damages THERE- 
IN. — In a suit for abatement of nuisance and recovery 

10— Vol. I. 




^u 



74 CJoDE OF Civil Prockdurb. 

of damans in connection therewith, the Count j Court 
has no jurisdiction of an action for damages, except as 
incident to its powers to abate the nuisance; and if it 
should appear that the nuisance has been abated prior 
to the commencement of the action, it would follow, as 
a matter of course, that the Court has no jurisdiction 
for any purpose.—Grigsby vs. Clear Lake Water Co., 
40 Cal., p. 396. As to jurisdiction of actions to abate 
nuisance, and as to concurrent jurisdiction of District 
Courts in such cases, see the able and elaborate opinion 
of Justice Rhodes in Courtwright vs. B. R, & A. "W. 
& M. Co., 30 Cal., p. 576; see, also. Note 9 of this sec- 
tion, also preceding section; see ** Nuisance,'* Civil 
Code, Vol. II, pp. 475-485, and notes; Penal Code, pp. 
148-152, and notes. 

2. Unlawful Detainer of Lands, ktc. — When 
tenants unlawfully retain possession of lands and tene- 
ments after the termination of and against the terms of 
their lease under which .they went into possession. 
Justices Courts have no jurisdiction of actions to 
recover the same. — Caulfield vs. Stevens, 28 Cal., p. 
118. The amendments to the Constitution confer exclu- 
sive jurisdiction of actions of unlawful detainer, and 
also for forcible entry and detainer upon the County 
Courts.— Id. 

3. Forcible Entry and Unlawful Detainer- 
Forcible I^ETAINER. — Under the general head of 
** Forcible Entry and Detainer," nearly every one, if 
not all, the States of the American Union have legis- 
lated in the same act not only upon the subject of 

^ forcible entry and forcible detainer, but also upon the 

subject of unlawful detainer, thus treating all three as 
one general subject, sufficiently described by the words 
in question. If technical exactness is to be observed, 
a more full and complete statement of the subject of 
such legislation would find expression in the woids 
^^1 "forcible entry and forcible and unlawful detainer;" 

A yet this exactness of designation lias not been observed 

in the legislation of the country nor in its legal par- 
^ lance. We speak of such legislation as the " Forcible 

Entry and Detainer Acts." We speak in general 
terms of this or that action as being brought under the 
^ ** Forcible Entry and Dettiiner Act," regardless of the 

minor fact whether it be for a forcible entry, or a forcible 
detainer, or an unlawfbl detainer, thus using the words 
in a generic sense and as comprehending all three. 
The Act in our own State upon this subject prior to the 
constitutional amendments of 1862, is entitled '*An Act 
concerning forcible entries and unlawful detainers." 



1 



Code of Civil Procbdurb. 75 

This title is quite as inexact as the one which we have 
been considering; yet under it the Legislature pro- 
ceeded to provide for a forcible detainer as well as a 
forcible entry and unlawful detainer. The title used in 
most of the other States is the same as that adopted in 
the amended Constitution, yet they proceed under that 
general head to provide for unlawful detainers. Our 
constniction is also sustained by the terms of the Judi- 
ciary Act organizing the Courts under the amended 
Constitution.— Stats. 1863, p. 336. Unlawful detainer, 
as a subject distinct from forcible entry and detainer, is 
not mentioned in that Act. Jurisdiction of actions of 
forcible entry and detainer is given to County Courts 
in accordance with the Constitution. Ko jurisdiction 
in cases of unlawful detainer is given to Justices* 
Courts; hence, so far as that Act is concerned, no pro- 
vision is made for the latter cases unless they are 
included in the former. Yet it is generally understood 
that the principal author of the constitutional amend- 
ments, and of the Judiciary Act of 1863, was the same 
person. Had he intended to separate unlawful from 
forcible detainers by his constitutional amendments, 
giving jurisdiction over the latter to the County Courts, 
and leaving jurisdiction over the former to be conferred 
by the Legii>lature upon Justices' Courts, or such other 
inferior Courts as they might create, that intention 
would have doubtless been carried out in the Judiciary 
Act, but such is not the case; and the whole subject of 
forcible entries and forcible and unlawful detainers 
seems to have been considered as provided for under 
the general head of forcible entries and detainers, and 
jurisdiction over tlie same given to the County Courts. 
Caulfield vs. Stevens, 28 Cal., p. 119; see, also, Ken- 
nedy vs. Hamer, 19 Cal., p. 374. See note to Subd. 5. 
4. Forcible Entry and Unlawful Detainer. — 
In an action of forcible entry and detainer, A. obtains 
judgment in Justice's Court, and gets possession of the 
premises by a writ of restitution. Subsequently B. 
gives bonds and appeals to County Court, where he 
obtains a verdict in his favor. Held : the County Court 
had power, after setting aside the judgment of the 
Justice's Court, to order the premises to be restored to 
B. The order (writ of restitution) was necessary to 
perfect the jurisdiction of the County Court over the 
subject. When a Court has general jurisdiction of a 
subject it has power to make a full disposition of the 
matter and conclude the litigation respecting it. The 
l)ower to pass upon the question involved carries along 
with it, as a general rule, the power to make the decis- 



76 Code of Civil Procedure. 

ion effectual for the purposes for which it was made. — 
Kennedy vs. Ilamer, 19 Cal., p. 387. 

5. Proceedikos in Insolvency. — See Sec. 1822, 
po!^t, and note; also, Civil Code, Vol. IT, pp. 454-474, 
and notes. 

6. Jurisdiction of County Court in special 
cases, whetukr original or appellate. — the 
Con.-titution provides that the County Courts shall have 
such juri.-diction, in cases arii^in^ in Justices' Courts, 
and in special cases, as the Legislature may prescribe; 
but shall have no original jurisdiction, except in such 
special cases, prior to amendments of 1862. — Art. VI, 
Sec. 9. The jurisdiction thus conferred is both appel- 
late and original. It is appellate as to cases arisinj^ in 

' Justices' Courts, and in si>ecial cases arising from the 

action of Boards, or officers exercifiing judicial or 
quasi-judicial functions. The extent of such juris- 
diction is fiucJi " as the Legislature may prescribe," 
subject only to the qualification that it does not trench 
upon and exclude the jurisdiction of the superior tribu- 
nals. Under the clau>e in quostion provision has been 
, made in numerous instancv*s, for appeals from the 

action of Commissioners, or Boards of Supervisors, in 
awarding damnges where private property is taken for 
public uses. — See Act concerning "Roads and High- 
ways " in the Counties of Humboldt, Napa, and Siski- 
you, of February 22d, 18C0, Sec. G. And we do not 
perceive any inhibition in the Constitution to vesting 
a like appellate jurisdiction in the County Court, 
from the action of the Boai-d of Trui^tces of the Town 
of Eureka, in the execution of the trust imposed by the 
Acts of Congress and the legislation of the State in 
the disposition of the lands entered by them. But, 
in fact, the juri^diction vested by the Act of Januarj^ 
24th, 18(50, is not appellate, though so designated. It is 
original jurisdiction which is conferred. The right of 
the parties to the lots, under the rules and regulations 
prescribed by the legislative authority of the State, is 
the subject of consideration and determination, without 
reference to the evidence presented to the Board of 
Trustees. The whole matter is investigated anew, and 
the action of the Boaixl of Trustees only becomes 
material as furnishing authority for the proceeding 
before the County Court. When, therefore, the Act 
says, that in case any claimant shall feel aggrieved by 
the decision of the Board of Trustees he may take an 
appeal to the County Court, and requires the proceed- 
ings there to be by complaint, answer, or demurrer, 
and in conformity with the rules applicable to actions in 



Code of Civil Procedure. 77 

Courts of record, it only means that if the claimant be 
dissatisfied with the decision of the Trustee?, he may 
have his right investigated and dtitermincd in an action 
brought against the successful claimant in the County 
Court. In. the Act of Congress of March 3d, 1851, for 
the settlement of private land claims in California, pro- 
vision is made for the investigation of claims to land 
held under grants from the Spanish or Mexican Gov- 
ernments by a Board of Commissioners. By a subse- 
quent Act, passed the thirty-ilrst of August, 1852, it is 
declared, that the filing of a certified transcript of the 
proceedings and decision of the Commissioners with* 
the Clerk of the United St*itos District Court, "shall, ipso 
facto^ operate as an appeal for the party against whom 
decision " is rendered. And in the case of tln^ United 
States vs. Kitchie, 17 How., p. 533, it was objected, 
that the law in thus prescribing an appeal was uncon- 
stitutional, as the Board of Commissioners, as organ- 
ized, wt\s not a Court under the Constitution, and 
could not, therefore, be invested with any of the judi- 
cial powers conferred upon thQ General Government. 
But the Supremo Court said, in answer to the objec- 
tion, "that the suit in the District Court is to be 
regarded as an original proceeding; the removal of the 
transcript, papei*s, and evidence into it, from the Board 
of Commissioners, being but a mode of providing for 
the institution of the suit in that Court. The transfer, 
it is true, is called an appeal; wo ipust not, however, be 
misled by a name, but look to the substance and intent 
of the proceeding. The District Court is not confined 
to a mere reexamination of the case, as heard and 
decided by the Board of Commissioners, but hears the 
case de novo, upon the papers and testimony which had 
been used before the Board, they being made evidence 
in the District Court; and, also, upon such further evi- 
dence as either party may see fit to produce." So, in 
the present case, we must not be misled by the use of 
the word appeal, but look to the substance and intent 
ot the proceeding. Thus looking, we must see that 
there is appellate in the action authorized before the 
County Court, but only a mode provided for testing, 
before one of the regularly constituted tribunals of the • 
country, the confiicting rights of adverse claimants to 
the town lots, under the Acts of Congress and the legis- 
lation of the State. The inquiry then arises, whether 
the action authorized in the County Court is a " special 
case," for of such cases only can that Court take origf- 
inal civil jurisdiction. The proceeding before the 
Board of Trustees is clearly a special case; it is a 



78 CoDB OF Civil Procedure. 



proceeding purely statutory, commenced and prose- 
cuted for the ascertainment of a particular fact to guide 
the. Boar4 in the execution of the trust devolved upon 
them. It is not an ordinary^ action at law, or equity, 
or conducted according to the forms of such action. 
But the proceeding in the County C5ourt is quite differ- 
ent from that before the Board of Trustees. It there 
takes the form of a regular action; a complaint is to be 
filed, and the contestant must answer or demur within 
the time provided in ordinary civil actions, and the 
pleadings and proceedings are to be governed by the 
same rules applicable to action in other Ck)urt8 of 
record. But, still, we are clear that the action is a 
** special case." It is a proceeding marked by one pecu- 
liarity, which distinguishes itfh)m the class of ordinary 
actions at law, or equity. The parties who are to be 
governed .by its judgment — the Board of Trustees — 
are not litigants before the Court, or parties to the 
record. They do not appear in person or by attorney 
in the action, and yet are required to yield obedience 
to, and carry into effect the determination of, the Court. 
The proceeding is, in effect, only an inquisition, though 
the form of a regular action, like the proceeding before 
the Board for the ascertainment of a particular fact, 
upon which, when once judicially ascertained, the 
Board must act independent of any violation on its 
part. It is, therefore, a special case, within the most 
narrow construction ever given to those words by this 
Court. — Parsons vs. Tuolumne Co., 5 Cal., p. 43; 
Jacks vs. Day, 15 id., p. 91; Arnold vs. Rees, 18 N. Y., 
p. 57; Doubleday vs. Heath, 16 id., p. 80; Kundolf vs. 
Thalheimer, 2 Kern., p. 593. It follows that the 
County Court had jurisdiction of the action, and there 
was no error in the ruling of the Court to that effect. — 
Ricks vs. Reed, 19 Cal., p. 572. 

7. Condemnation of Land, etc., fob public 
USE. — As to power of County Court in matters of con- 
demnation of land and W9,ter for use of certain corpo- 
rations, see S. F. & A. W. Co. vs. A. W. Co., 36 Cal., 
p. 639. Jurisdiction of proceedings for condemnation 
of private property for public use is now conferred on 
the District Court. — See Sec. 1243, post. 

8. Contesting Elections. — See, also, Saunders vs. 
Haynes, 13 Cal., p. 145, where an action to contest an 
election held for District Judge is held a special case 
within jurisdiction of County Court, See note to Sec. 
84, ante; noticing decision of Ricks vs. Reed, 19 Cal., 
p. 572; and see, also. Jacks vs. Day, 15 Cal., p. 91. 

9. Special Cases— Action to Abate Nuisance. — 



Code of Civil Procedure. 79 

The term "special cases'^ in the Constitution does not 
include any class of cases for which the Courts of gen- 
eral juris-diction have always supplied a remedy. The 
"special cases" must be confined to such new cases as 
are the creation of statutes, and the proceedings under 
which are unknown to the general framework of Courts 
of common law and equity. The action to prevent or 
abate nuisances is not one of this class, and County 
Courts can have no jurisdiction in such actions. — Par- 
sons vs. Tuolumne Water Works Co., 6 Cal., p. 48. 

10. Special Cases Definjed — Action upon a Me- 
chanics' Lien a Special Case.— The provision of 
our State Constitution, that County Courts shall have 
jurisdtction in special cases as the Legislature may pre- 
scribe, was copied from the Constitution of the State 
of New York. The Judges of the Court of Appeals 
of that State arc about equally divided as to the proper 
meaning of the provision. One portion consider that 
it is the purpose of the Constitution to confer upon the 
Supreme Court, which corresponds to our District 
Court, general jurisdiction in all cases properly cog- 
nizable in Courts of law and equity, without specially 
designating them; and also to authorize the Legisla- 
ture to confer upon County Courts jurisdiction in such 
cases as the Legislature might think appropriate to 
that tribunal, and should specially designate. Another 
portion consider that the Constitution intends only to 
authorize the Legislature to confer jurisdiction upon 
County Courts in cases which are in their character 
special, by differing from those cases of which the 
Supreme Court wou^/d take cognizance by virtue of its 
powers as a Court of general jurisdiction. — Arnold vs. 
Bees, 18 N. Y., p. 57. The latter is the view taken by 
the Supreme Court of this State. — Parsons vs. The Tuol- 
umne County Water Co., 5 Cal., p. 43; Brock vs. Bruce 
et al., 5 id., p. 279. In these cases our Supreme Court 
say: " The * special cases,* therefore, must be confined 
to such new cases as are the creation of statute, and the 
proceedings under which are unknown to the general ' 
framework of Courts of common law and equity.'* 
There remains difficulty, however, in determining what 
are such special cases. It is a maxim that there can 
be no right without a remedy; and it is not easy to 
imagine any new case in which a right should be 
conferred by statute for which a mode of enforcing it 
would not be found in the general framework of the 
Courts of common law and equity. In New York, 
some of the Judges who held that these special cases 
most be in their character different from those falling 



80 Code of Civil Procedure. 



within the cognizRnce of Courts of general jurisdiction, 
have nevertheless concurred in holding that a proceed- 
ing for the partition of land, and an action to fore- 
close a mortgage, wgre special cases. — Arnold vs. Rees, 
cited above; Doubleday vs. Heath, 16 N. Y., p. 80. 
And in our State the same has been decided in regard 
to proceedings in in^olveney. — Harper vs. Freelon, 6 
Cal., p. 76. The lien of a mechanic upon a house and 
the ground on which it stands, as security for the 
amount due to him for work done and materials fur- 
nished in building the house, irrespective of any con- 
tract for such a lien, is the ^* creation of statute/' and 
the proceedings to enforce it, as provided by the law 
of this State, as amended in 1861, "are unknown to 
the general framework of Courts of common law and 
equity, '* if any proceedings can be. They are com- 
menced by petition, and not by complaint and sum- 
mens. No summons or other process is issued, but in 
their place a notice is published for all persons inter- 
ested to come in and participate; and all the other 
steps are calculated to dispose of the matter in a sum- 
mary way, and with the least delay and expense. In 
these respects they are substantially identical with the 
prdceedings in insolvency. The right and the remedy 
are jxjculiar, and we can conceive of no case that could 
be considered " special " if this is not. It is said, how- 
ever, that the point has been decided the other way, in 
the case of Brock vs. Bruce, cited above. We think 
there is a radical difference between that case and this. 
By the law as it stood when that case was decided, the 
mechanics* lien could only be enforced by an action; 
and the Court put the decision expressly upon the 
ground that the mechanic could enforce his right to 
compensation for his work and materials by suit in 
Courts of general jurisdiction, and that the lien was a 
species of mortgage added by statute, which followed 
the debt, and might be enforced in the same action. 
In the law as it now stands, the debt and the lien are 
expressly separated — the former to be enforced by an 
action, of course, either in the District Court or before 
a Justice of the Peace; the latter by a special proceed- 
ing in the County Court only. The debt, which would 
exist if there were no Mechanics* Lien Law, may be 
enforced like any other debt, by action in a proper 
Court. The lien is a peculiar ricrht, existing only by 
statute, and which the same statute provides must be 
enforced by a special proceeding wholly separate from 
the debt. This case falls within the definition of " spe- 
cial cases,'' as given in the case of Brock vs. Bruce 



i 



CoDB OP Civil Procedure. 81 

« 

et a1., 5 Cal., p. 279, but is not within the effect of that 
decision. If the term ** special cases*' in the Consti- 
tution moans such cases as the Legislature may see 
fit to assign to the jurisdiction of Count}' Courts by 
special designation, without regard to their peculiar 
character, then, of course, the County Court had juris- 
diction of the case under consideration, as such juris- 
diction is directly given by the seventh section of the 
Mechanics* Lien Law, as amended in 1861. Our con- 
clusion is, that under either view of the proper mean- 
ing of the term ** special cases,'* in the Constitution, 
the provision to enforce a mechanic's lien, under the 
law as amended in 1861, is a special case of which 
the Legislature might properly give jurisdiction to the 
County Courts under the Constitution. — McNiel vs. 
Borland, 23 Cal,, p. 147. 

11. Writ of Mandate.— County Courts, under the 
Act of the Legislature, can exercise jurisdiction in pro- 
ceedings by mandamus. — Jacks vs. Day, 15 Cal., p. 
91; see also, however, Parsons vs. Tuolumne Water 
Co., 5 Cal., p. 43; Zander vs. Coe, 5 Cal., p. 231; 
Brock vs. Herrick, 5 Cal., p. 279. When County 
Court cannot exercise jurisdiction by writ of mandate. * 
See People vs. Halloway, 26 Cal., p. 661. 

12, Jurisdiction over Territory when New 
Counties are Formed. — Where a new county is 
created out of parts of old counties already existing, 
but its organization is provided to take effect at a future 
day, the County Court of the old county continues to 
have jurisdiction to find indictments for crimes com- 
mitted in the territory of the proposed new county 
until the organization of the new county is perfected. — 
People vs. McGuire, 32 Cal., p. 140. See, also, this 
case for similar question concerning jurisdiction of 
District Court, where the new county created out of 
an old one is transferred to a different judicial dis- 
trict.— Id. 

It3 appellate jurisdiction extends to all eases Appeijat* 
arising in Justices* or Police Courts. tion. 

Note. — 1. County Courts have sole Appellate 
Jurisdiction over cases arising in Justices' 
AND Police Courts.— See People vs. Fowler, 9 Cal., 
p. 85. 

2. Order of Justice for Delivery of Stolen 
Property to its Owner not AppEALABLE.—An 

1 1— Vol. I. 



82 CJoDB OP Civil Peooedurb. 

appeal cannot be taken to the County Court from an 
order of a Justice of the Peace directing property 
alleged to have been stolen and discovered, and 
brought before the Justice by a peace officer, by virtue 
of a search warrant issued by the Justice, to be 
delivered to the owner. — ^People vs. Halloway, 26 Cal., 
p. 651. 

3. Errors to Prejudice of People ik CuixisfAL 
Cases before Justices not Appealable. — ^The 
County Court has no jurisdiction in a criminal case 
where the defendant appeals to inquire into errors 
committed prejudicial to the people who have not 
appealed. If it does so, the District Court can correct 
the judgment on certiorari. — Morley vs. Elkius, 87 
Cal., p. 454. 

4. No Jurisdiction on Appeal where amount 

IN CONTROVERSY EXCEEDS ThREE HUNDRED DOL- 
LARS. — A judgment rendered by a County Court upon 
ai^ieal for a sum exceeding three hundred dollars is 
void.— Will vs. Sinkwitz, 89 Cah, p. .570, 

5. Testimony outside Justice's record as to 
Jurisdiction of County Court, may be taken by 
County Court. — When, on an appeal from a Justice's 
to a County Court, a question arises as to jurisdiction of 
the latter, it may take testimony outside the record 
transmitted by the Justice as to what occurred after fil- 
ing the undertaking and notice of appeal, and also as to 
what happened before that time, if the Justice has not 
made the requisite entries in his docket. — Blair vs. 
Hamilton, 32 Cal., p. 50. 

6. Where County Court has Final JurisIjiction 
THERE IS NO FURTHER REMEDY. — If the case is One in 
which the County Court had final jurisdiction there is 
no further remedy. Its decision cannot beVeviewed by 
mandamus nor by any other means. — Lewis vs. Bar- 
clay, 85 Cal., p. 218; People vs. Sexton, 24 Cal., p. 78; 
People vs. Pratt, 28 Cal., p. 136; People vs. Weston, 
28 Cal., p. 669; Cariaga vs. Dryden, 29 Cal., p. 307. 

Presump- 87. The proceedings oT this Court are construed 
fav°r 0? in the same manner, and with like intendments, as the 
eta ' proceedings of Courts of general jurisdiction, and to 
its records, orders, judgments, and decrees there is 
accorded like force, effect, and legal presumptions a-s 
to the records, orders, judgments, and decrees of Dis- 
trict Courts. 



CJoDB OF Civil Procedure. 83 

88. The terms of the County Courts in the respec- Terms of 

•^ ^ the County 

tire counties mu»c be held as follows: tho*^^'^'^ 

In the County of Alameda, on the jfirst Monday of J^u^a^!® 
JanuaiT, April, and Julj^, and third Monday of Sep- 
tember; 

In the County of Alpine, on the first Monday of 
February, June, and October; 

In the County of Amador, on the first Monday of 
February, May, August, and November; 

Id the County of Butte, on the first Monday of Jan- 
uary, March, May, July, September, and November; 

In the County of Calaveras, on the first Monday of 
March, June, September, and December; 

In the County of Colusa, on the third Monday of Jan- 
uary, April, July, and October; 

In the County of Contra Costa, on the first Monday 
of March, August, and November; 

Lithe County of Del Norte, on the first Monday of 
April, July, and October; 

In the County of El Dorado, on the second Monday 
of March, June, September, and December; 

In the County of Fresno, on the first Monday of 

January, March, May, July, September, and Novem- 
ber; 

In the County of Humboldt, on the first i\Ionduy of 

January^ March, May, July, September, and Novem- 
ber; 

In the County of Inyo, on the first Monday of Janu- 

^, March, May, Jul}^, September, and November; ) 

In the County of Kern, on the first Monday of Jan- 

oaiy, March, May, July, September, and November; 

In the County of Klamath, on the first Monday of 

April, July, and October; 

In the County of Lake, on the first Monday of Jan- 
nary, April, July, and October; 

In the County of Lassen, on the first Monday of 
Pebnmiy, May, August, and November; 



84 Code of Civil Procedure. 

Same. In the County of Los Angeles, on the first Monday 

of January, March, May, July, September, and No- 
vember; 

In the County of Marin, on the third Monday of 
March, June, September, and December; 

In the County of Mariposa, on the first Monday of 
January, March, May, July, September, and K'ovem- 
ber; 

In the County of Mendocino, on the first Monday of 
March, June, September, and December; 

In the County of Merced, on the first Monday of 
January, March, May, July, September, and Novem- 
ber; 

In the County of Mono, on the first Monday of Jan- 
uary, May, and September; 

In the County of Monterey, on the second Monday 
of Januaiy and July, and third Monday of March and 
September; 

In the County of Napa, on the first Monday of 
March, September, and December, and third Monday 
of June; 

In the County of Nevada, on the first Monday of 
February, May, August, and November; 

In the County of Placer, on the first Monday of 
January, March, May, July, September, and Novem- 
ber; 

In the County of Plumas, on the first Monday of 
March, June, September, and December; 
' In the County of Sacramento, on the first Monday 
of January, April, July, and October; 

In the County of San Bernardino, on the first Mon- 
day of Januaiy, March, May, July, September, and 
November; 

In the County of San Diego, on the first Monday of 
January, March, May, July, September, and Novem- 
ber; 

In the County of San Francisco, on the first Monday 



Code of Civil Procedure. 85 

of Januaiy, March, May, July, September, and No- Same.^ 
vember; 

In the County of San Joaquin, oi\ the firet Monday 
of January, March, May, July, September, and No- 
vember; 

In the County of San Luis Obispo, on the first Mon- 
day of March, June, September, and December; 

In the County of San Mateo, on the fii-st Monday of 
February and June, and last Monday of September; 

In the County of Santa Barbara, on the first Monday 
of ^larch, June, September, and December; 

In the County of Santa Clara, on the third Monday 
of February, ihiy, August, and November; 

In the County of Santa Cruz, on the firat Monday, of 
January, Marcli, May, July, September, and Novem- 
ber; 

In the County of Shasta, on the first Monday of 
January, Miiy, and September; 

In the Comity of Sierra, on the third Monday of 
April, June, and September, and second Monday of 
December; 

Li the County of Siskiyou, on the first Monday of 
January, March, May, July, September, and Novem- 
ber; 

In the County of Solano, on the third Monday of 
April, August, and December; 

In the County of Sonoma, on the first Monday of 
January, Apnl, July, and October; 

In the County of Stanislaus, on the first Monday of 
January, March, May, "July, September, and Novem- 
ber; 

In the County of Sutter, on the first Monday of 
Januaiy, April, July, and October; 

In the County of Tehama, on the first Monday of 
January, March, May, July, September, and Novem- 
ber; 

In the County of Trinity, on the first Monday of 



86 Code of Civil Procedurk. 

Same. January, March, May, July, September, and Ifovem- 
ber; 

In the County of Tulare, on the first Monday of 
Januaiy, March, May, July, September, and Novem- 
ber; 

In the County of Tuolumne, on the first Monday of 
January, May, and September; 

In the County of Yolo, on the first Monday of Janu- 
ary, April, Jul}', and October; 

In the County of Yuba, on the fii-st Monday of Janu- 
ary', April, and July, and second Monday of October. 

2s'0TE.— Statp. 1871-2, p. 182. 

An Act to regulate the terms of the County Court and 
Pi'ohate Court of the several counties of this State, 

[Approved March J, 1872.] 

[Enacting clause.] 

Section 1. Each of the rrpular terms of each 
County Court thall continue until the next regular 
teim, unless the business of the Couit is sooner dis- 
posed of. 

Skc. 2. Each of its regular terms of each Probate 
Court shall, either with or without intei mediate ad- 
journment, continue to the commencement of the next 
term. • 

Idem, p. 95. 

Skc. 2. Termi? of the County Court and of the Pro- 
bate Court, in the County of San Mateo, shall com- 
mence and be holden on the second Mondays in March, 
June, Sei>ti»mb<!r, and December in each year, and tbe 
terms of eacli or either of Miid Courts may be con- 
tinued from day to day, or adjourned from time to 
time, as the business of the Court may require. 

Skc. 3. This Act shall take effect and be in force 
from and after its passage. 

Idem, p. 35. 

An Act to fix the terms of the County and Probate 
Courts in and for the County of San Luis Ohtfpo, 

[Approved January 2.3, 1872.] 

[Enacting clause.] 

Section 1. The regular terms of the County' and 
Probate Courts in and for the County of San Luis 
Obispo shall be held at the county seat of said county 



^ 



CoDB OP Civil Procedure. 87 

on the first Monday in March, the first Monday in June, 
the third Monday in August, and the first Monday in 
December in each year. 

Idem, p. 760. 

An Act to fix the terms of the County Court of the 

County of Monterey, 

[Approved March 30, 1872.] 

[Enacting clause.] 

Section 1. The terms of the County Court of Mon- 
terey County shall be held, on the first Monday of 
March, May, July, September, and November of each 
year. 

See Siskiyou County and Probate Courts Act of 1872, 
p. 561, Sec. 2, cited in note to Sec. 66, ante. The Act 
of 1872, p. 844, amending Act of 1868, March 30th, is 
on the 1st of January, 1873, superseded. — See Sec. 330, 
Political Code Cal., Vol. I. Terms of Courts in Ven- 
tura County, see Act of 1872, p. 484, cited in Political 
Code Cal., in note following Sec. 3958, Vol. II; see, 
also, County Court of Nevada County, to be held at 
Truckee, Stats. 1871-2, p. 700, cited in note to Sec. 71, 
ante. 

89. For the purpose of hearing and determining Court 

always 

actions arising under the forcible entry and detainer open for 

*^ •' certain 

Act of this State, motions for new trials, and the entry p^i>08««- 
of orders and judgments, this Court is always open 
and in session. 

90. The terms of the CJounty Courts must be held Terms of 

the County 

at the county seats. Court. 

'' whore held 

Note.— Stats. 1871-2, p. 182; id., p. 95; id. p. 35; 
id., p. 561; id., p. 484. Cited in note to Sec. 88, ante, 
for changes to this section, fixing terms of Probate 
Court. The Act of 1871-2, p. 21, being amendatory of 
an Act, is on the Ist of January, 1873, superseded by 
this Code.— See Sec. 330, Political Code Cal., Vol. I. 



88 



Code of Civil PBOCEDUfiB. 



CHAPTER VI. 



Court in 

each 

eoanty. 



OP THE PROBATE COURT. 

Section 94. Court in each county. 

95. Judges of. 

96. Judge of, in San Francisco. 

97. Jurisdiction of. 

98. Presumptions in favor of its judgments. 

99. Terms of the Court in the respective counties. 
100. Terms, where held. 

94. There must be a Probate Court held in each 
of the counties. 



Judges of. 95. The County Judge of each county, except in 
the City and County of San Francisco, is the Judge 
of the Probate Court. 



Judge of, 
in San 
Franoisoo. 



Jurisdio- 
tion of. 



96. In the City and County of San Francisco the 
Probate Court is held by a Probate Judge elected by 
the electors thereof at the judicial elections, and who 
holds his office for the term of four years from^ the 
first day of January next succeeding his election. 

97. The Probate Court has jurisdiction: 

1. To open and receive proof of kst wills and testa- 
ments, and to admit them to proof; 

2. To grant letters testamentary, of administration 
and of guardianship, and to revoke the same; 

3. To appoint appraisers of estates of deceased 
persons; 

4. To compel executors, administrators, and guard- 
ians to render accounts; 

5. To order the sale of property of estates, or be- 
longing to minors; 

6. To order the payment of debts due from estates; 

7. To order and regulate all distributions of prop- 
erty or estates of deceased persons; 

8. To compel the attendance of witnesses, and the 



Code of Civil Procedure. 89 

l)rodactiou of title deeds, papers, and other property Same. 
of an estiite, or of a minor; 

9. To exercise the powers conferred by Title XI, 
Pai-t III of this Code; 

10. To make such orders as may be necessary to 
the exercise of the powers conferred upon it. 

Note.— Stats. 1863, p. 339. 

1. Concurrent Jurisdiction of District Court 
WITH THE Probate Court over persons and 
estates of Minors. — Prior to the amendments to the 
Constitution it was held that District Courts have the 
game control over the persons of minors, as well as 
their estates, that the Courts of Chancery in England 
possess. This jurisdiction was conferred by the Con- 
stitution of this State, and could not be divested by 
legislative enactment; and it was held that the claim 
of exclusive original jurisdiction in the Courts of Pro- 
bate over this subject was unfounded — that Chancery 
could at any time interfere and remove the proceedings 
before it. — See Wilson vs. Koach, 4 Cal., p. 366. 

2. "When proceedings in Probate Court may 

BE disregarded, AND AN ACTION MAINTAINED 

AGAINST Administrator in District Court.— It 
has been held that the Probate Court is a Court of 
special and limited jurisdictions. Most of its general 
powers belong peculiarly and originally to the Court 
of Chancery, which still retains all of its jurisdiction. 
Where, therefore, a bill is filed in chancery against an 
administrator to compel him to account, by one who 
has not been an actual party to a proceeding or settle- 
ment, in the Probate Court, he may totally disregard 
such proceeding or settlement, and, although the settle- 
ment in the Probate Court is a final settlement, the 
complainant, who was no party to it, may treat it as a 
nullity, and proceed to invoke the equitable powers of 
the District Court and compel the administrator to a 
full account. — Clarke vs. Perry, 6 Cal., p. 60. 

3. Prior to amendments to Constitution, Dis- 
trict Court authorized to try issues of fact. 
An administrator, having filed in the Probate Court his 
account of final settlement, and an issue of fact being 
made thereon, it was sent to the District Court for trial. 
In that Court the jury made findings on each issue, and 
the District Judge rendered his decision on such finding 
and certified the same back to the Probate Court. It 

12 ^YOL. I. 



90 Code op Civil Procedueb. 

was hold that the Probate Court might properly re- 
fuse to give effect to the judgment and decision of the 
District Court, and might, without committing error, 
give judgment on such findings as it (the Probate 
Court) construed them. — Pond vs. Pond, 10 Cal., p. 
"495. But since the apiendments of 1862 to the Consti- 
tution, District Courts are no longer authorized to try 
issues framed by Probate Courts. See case below 
cited. 

4. Probate Couut now Tbiiss all issues o* 
fact, etc.; cannot frame issues for district 
Court.— The Probate Court has jurisdiction to try 
and determine issues of fact arising before it. When 
issues of fact were formerly sent to Distinct Court for 
trial (see Keller vs. De Franklin, 5 Cal., p. 432; Reed 
vs. McComiick, 4 Cal., p. 342); but since the amend- 
ments of 1862 to the Constitution, District Courts have 
no longer jurisdiction to try issues framed in Probate 
Courts. The Probate Court has now jurisdiction to tiy 
these ifisiies. — Matter of Will of Bowen, 34 Cal., p. 
682. See, also. Estate of Tomlinson, 35 Cal., p. 509. 

5. Probate Court of limited and inferior 
Jurisdiction.— The Probate Court is an inferior 
Court, and, therefore, cannot take jurisdiction, or 
administer remedies other than those given, and in 
the manner pix)vided by the statute. — Grimes' Estate 
vs. Norris, 6 Cal., p. 625. Effect of will made before 
passage of the Probate Act, when testator died since 
that time. — Id. Probate Courts are of inferior and 
limited jurisdiction; and in pleading their judgments 
it is necessary to set out the facts which give jurisdic- 
tion. — Smith vs. Andrews, 6 Cal., p. 652, commenting 
on Wilson vs. Dunbar, 4 Cal., p. 313. The Probate 
Court is a Court of special and limited jurisdiction. 
Most of its general powers belong, peculiarly and 
originally, to the Court of Chancery, which still re- 
tains all its jurisdiction. Where, therefore, a bill is 
filed in Chancery against an administrator, to compel 
him to account, by one who has not been an actual 
party td a proceeding or settlement in the Probate 

• Court, he may totally disregard such proceeding or 

settlement; and, although the settlement in the Pro- 
bate Court is a final settlement, the complainant, who 
was no party to it, may treat it as a nullity, and pro- 
ceed to invoke the equitable powers of the District 
Court, and compel the administrator to a full account. 
The power of the Chancery Court to interpose for the 
settlement of accounts, and the enforcement of trusts 
of this sort, is maintained where the estate seems to be 



Code of Civil Procedure. 91 

in confusion, and the matters connected with its settle- 
ment complicatedi requiring from the Probate Court, 
and probably alter wards from other Courts, various, 
expensive, and tedious proceedings. The District 
Court can direct or decide the appropriate issues, refer 
the various accounts, and make the proper decree of 
settlement or distribution. But the Court, in this 
decision, mu.^t be considered as holding that Chancery 
has no jurisdiction to open an account or other matter 
settled by the Piobatc Court, except under peculiar 
equitable circum^-tances. — Deck vs. Gerke, 12 Cal., p. 
433; see, aUo, Clark vs. Perry^ 5 Cal., p. 60; Sanfoid 
vs. Ilifad, 5 Cal., p. 298. Probate Courts, in the con- 
struction of their proceedings had before the passage 
of the Act of 1858, are to bo regarded as Courts of 
limited and inferior jurisdiction. — Townsend vs. Gor- 
don, 19 Cal., p. 205; Smith vs. Andrews, 6 Cal., p. 
652; Beckett vs. Selover, 7 Cal., p. 215; Ilaynes vs. 
Meek;*, 10 Cul., p. 110; Clarke vs. Perry, 5 Cal., p. 58. 

6. What ake Jurisdictional Facts in Probate 
PROCEKDINOS. — See Townsend vs. Gordon, 19 Cal., p. 
205; Gregory vs. Taber, 19 Cal., p. 397; Haynes vs. 
Meeks, 20 Cal., p. 288; Meeks vs. Hahn, 20 Cal., p. 
620; Halleck vs. Moj«s, 22 Cal., p. 200; Estate of Har- 
lan, 24 Cal., p. 187; Lucas vs. Todd, 23 Cal., p. 182; 
Boyd vs. Blunkman, 29 Cal., p. 20; see, particularly, 
Townsend vs. Tallant, 33 Cal., p. 45. 

7. Petition for Salb of Keal Estate a Juris- 
diction Fact. — A statement of the amount of per- 
sonal estate that cai/H to their hands must be included 
in the petition for the sale of real estate by the execu- 
tors. This petition, with these required stiUutory aver- 
ments, are jurisdictional facts upon which and upon no 
other has the Court power to act. — Gregory vs. Mc- 
pherson, 13 Cal., p. 502. See this case questioned in 
Stuart vs. Allen, 16 Cal., p. 473; and as to jurisdiction 
of Probate Court generally, see last cited case. 

8. Removal or Suspension of Administrator. — 
The Probate Judge has power, by law, to remove or 
suspend an administrator, and An appellate Court can- 
not interfere with this power, unless it be clearly j^hown 
that there has been a gross abuse of dis^cretion by the 
Probate Court.— Deck*s Estate vs. Ghcrke, 6 Cal., p. 
669. 

0. Rbsignation of Administrator cannot he 
accepted until after settlement of his ac- 
counts. — The Probate Judge is charged by law with 
the execution of special duties. He is not vested with 
plenary powers, but acts witliin an inferior and limited 



92 Code of Civil Procedure. 

jurisdiction. There is nothing in the statute conferring 
power upon the Probate Court to accept the rei?ignation 
of an administrator until he has settled his accounts. — 
See Hayne.s vs. Meeks, 10 Cal., p. 110. 

10. NON-RKSIDENCK OF DeCEDEKT IN COUNTY 
CANNOT BE SHOWN IN A COLLATERAL ATTAtTC 

AGAINST Administration.— -It cannot be collaterally 
shown againtt the grant of administration upon an 
estate made by the Probate C!ourt of one county that 
the Court had no jurisdiction by showing that deceased 
had not his last place of re.<idence in that county. — 
Irwin vs. Scriber, 18 Cal., p. 503; commenting on 
Beckett vs. Selover, 7 Cal., p. 215. 

11. Exclusive Jurisdiction of Wills— Its Judg- 
ment conclusive proof of validity or invalid- 
ity or Will.— Probate Courts have exclusive juris- 
diction of matters relating t<> the proof of wills, and 
before a will can be read in evidence in support of & 
title under it, the party seeking to introduce it mubt 
show that it has been regularly admitted to probate. 
Until the probate is revoked it is conclusive of the 
validity of the will in all collateral proceedings, and 
the rejection of a will is equally conclusive of its inva- 
lidity. — Castro vs. Richardson, 18 Cal., p. 478; see, 
also, Irwin vs. Scriber, 18 Cal., p. 499; Adams vs. Lan- 
sing, 17 Cal., p. 269. 

12. Ejectment cannot be maintained concern - 
ING Property before Distribution, — An action of 
ejectment for i^perty of which intestate died seized 
cannot be maintained by the heirs until the property 
has been distributed according to a decree ot* the Pro- 
bate Court, or the administration get tied. — Meeks vs. 
Hahn, 20 Cal., p. 620; but see Townsend vs. Tallant, 
33 Cal., p. 45, where void jtvdgment of Probate Court 
may be attacked collaterally ^ it is held that if a sale 
is made by the Probate Court and the order gran tin f^ 
such sale is in excess of the jurisdiction of that Court, 
and consequently void, the minor heirs may attack 
such sale collaterally. 

13. Probate Court cannot construe Homestead 
Act. — The Probate Court has no jurisdiction to deter- 
mine the construction to be given to the Homestead 
Act of 1860, as to whether the homestead descends, 
upon death of husband or wife, to the survivor abso- 
lutely, or to the survivor and children heirs of deceased, 
and should be partitioned among them. — Estate of 
James, 23 Cal., p. 415. 

14. Settlement of Partnership affairs.— The 
jurisdiction vested in the Probate Court does not divest 



Code of Civil Procedure. 93 

the District Courts of their general jurisdiction, as 
Courts of Chancery, over suits for the settlement of 
ailairn of partnership (a partner having died), and suits 
of like equitable character. — Griggs vs. Clark, 23 Cal., 
p. 427; Wilson vs. Koach, 4 Cal., p. 362; Clark vs. 
Perry, 6 Cal., p. 58. 

15. Probate Court no Jurisdiction over Estate 
of person "who died previous to organization of 
State. — The Probate Co'urt has no jurisdiction over 
the probate of the will of a party who died before the 
organization of the State government. — Grimes' Estate 
vs. Norris, 6 Cal., p. 621; Tevis vs. Pitcher, 10 Cal., p. 
465; Do la Guerra vs. Packard, 17 Cal., p. 193; Soto 
vs. Kroder, 19 Cal., p. 87; Downer vs. Smith, 24 Cal., 
p. 123. Ueiroactive effect of I^robate AcL—But as to 
the retroactive effect of the Probate Act of 1851, see 
People vs. Senter, 28 Cal., p. 502, commenting on the 
above cited cases. The Act to regulate the settlement 
of the estates of deceased persons makes no express 
provision for an administration upon the estate of a 
person who died prior to the adoption of the Constitu- 
tion. The Probate Court can assume no jurisdiction in 
such a case. — Downer vs. Smith, 24 Cal., p. 114; 
Grimes* Estate vs. Norris, 6 Cal., p. 621; Tevis vs. 
Pitcher, 10 Cal., p. 465. 

16. Residence in county at time of death of 
DECEDENT CONFERS JURISDICTION.— When a pcrson 
dies the jurisdiction to administer upon his estate 
belongs to the Probate Court of the countj' in which 
he was a resident at the time of his death, etc. If the 
county lines are changed after his death, such change 
does not affect the jurisdiction of the Court; it belongs 
to the Court of the county as it stood at the time of 
his death.— Estate of Harlan, 24 Cal., p. 182. 

17. Where County Lines have been changed 
SINCE DEATH OF Intestant. — Where county lines are 
changed after death of decedent, the Probate Court of 
old county retains its jurisdiction. — Estate of Harlan, 
24 Cal., p. 182. 

18. Situation of Property, when sufficient 
to confer Jurisdiction. — Situation of the property 
of decedent dying out of the State confers jurisdiction 
on the Probate Court of the county where situated, 
and the action cannot be transferred to another Pro- 
bate Court.— Estate of Chas. G. Scott, 15 Cal., p. 220. 

19. Court cannot appropriate Heir's share of 
Property to payment of his debts.— The Probate 
Court can do no more than pay the claims against the 
estate, and distribute the remainder among the heirs 



94 Code of Civil Procedure. 

and devisees, or direct the administrator to do so. It 
has no power to appropriate the j^hare of an heir or 
devisee to the payment of his debts. — Estate of Nerac, 
35 Cal., p. 397. 

20. CorKT MAY COMPEL ADMINISTRATOR TO EXE- 
CUTE COKVKYAKCK FOR PROPERTY DECREED TO BE 

SOLD.—The Probate Court has jurisdiction to compel 
an administrator to execute a conveyance to a pur- 
chaser in conformity to an order of sale which has been 
duly confirmed. — Estate of Lewis, 39 Cal., p. 306. 

21. Decree for Payment of Money by Admin- 
istrator INTO Probate CouRT.—The administrator 
of an estate, having resigned, appeared in the Probate 
Court to have a final settlement of the accounts. After 
the hearing the Judge found him indebted to the estate 
In the sum of sixteen thousand dollars, and ordered 
him to pay it into Court. Upon his refusal to do so, 
this action was brought on the administration bond by 
the heirs. Upon the resignation of the administrator 
it was the first duty of the Court to appoint another, 
who alone would be competent to receive the estate 
from the retiring administrator, and complete its ad- 
ministration. Or, if the estate was in a condition for 
distribution, then to decteo severally in favor of the dis- 
tributees against the administrator; for either he must 
pay the moneys of the estate to an administrator, who is 
the only proper custodian, or to the distributees to whom 
it belongs. There is no such rule to be derived, either 
from the ecclesiastical law or* our statute of estates, 
wln'ch makes the Judge of Probate a fiscal agent, 
either to keep or disburse the money of an estate. It 
follows that the refusal of the administrator to pay the 
money into Court was no breach of the conditions of 
the bond. * That portion of the decree which requires 
it is coram non judice. — Wilson vs. Hernandez, 5 Cal., 
p. 443. 

Preromp. 88. The proceedings of this Court are construed 
favor of ita in the same manner, and with Uke intendments, as 
the proceedings of Courts of general jurisdiction, and 
to its records, orders, judgments, and decrees there is 
accorded Hke force, effect, and legal presumptions as 
to the records, orders, judgment, and decrees of Dis- 
trict Court. 

Note.— Stats. 1863, p. 389. See Irwin vs. Scriber, 18 
Cal., p. 499, commenting on Beckett vs. Selover, 7 Cal., 
p. 215; Lucas vs. Todd, 28 Cal., p. 182. And see case 



CoDB OP Civil Pkocedxjkb. • 96 

cited in preceding section. An attack on a judgment 
or order of the Probate Court must affirmatively show 
error.— Lucas vs. Todd, 28 Cal., p. 182. Orders of a 
Probate Court cannot be attacked in a collateral ac- 
tion. — Id. But see, also, Town send vs. Tallant, 33 
Cal., p. 45. 

90. The terms of the Probate Court in the respec- J^^J^^^ 
tive counties must be held as follows: ioBp**e®tivo 

In the County of Alameda, on the first Monday of ®**"'**^®"' 
January, April, and July, and third Monday of Sep- 
tember; 

In the County of Alpine, on the first Monday of 
February, June, and October; 

In the County of Amador, on the first Monday of 
February, May, August, and November; 

In the County of Butte, on the first Monday of Jan- 
uary, March, May, July, September, and November; 

In the County of Calaveras, on the first Monday of 
March, June, September, and December; 

In the County of Colusa, on the first Monday of each 
month; 

In the County of Contra Costa, on the first Monday 
of March, August, and November; 

In the County of Del Noite, on the first Monday of 
April, July, and October; 

In the County of El Dorado, on the second Monday 
of January, -April, July, and October; 

In the County of Fresno, on the first Monday of 
Janoary, March, May, July, September, and Novem- 
ber; 

In the County of Humboldt, on the first Monday of 
Janoary, March, May, July, Sej)tember, and Novem- 
ber; 

In the County of Inyo, on the first Monday of Jan- 
uary, March, May, July, September, and November; 

In the County of Kern, on the first Monday of Jan- 
uary, March, May, July, September, and November; 



96 • Code of Ci\^l Procedube. 

Same. In the County of Klamath, on the first Monday of 

April, July, and October; 

In the County of Lake, on the first Monday of Jan- 
uary, April, July, and October; 

In the County of Lassen, on the first Monday of 
February, May, August, and November; 

In tlie County of Los Angeles, on the first Monday 
of January, March, May, July, September, and No- 
vember; 

In the County of Marin, on the third Monday of 
March, June, September, and December; 

In the County of Mariposa, on the first Monday of 
January, March, May, July, September, and Novem- 
ber; 

In the County of Mendocino, on the first Monday of 
March, June, September, and December; 

In the County of Merced, on the first Monday of 
January, March, May, July, September, and Novem- 
ber; 

In the County of Mono, on the first Monday of Jan- 
uary, May, and September; 

In the County of Monterey, on the first Monday of 
each month; 

In the County of Napa, on the first Monday of 
March, September, and December, and third Monday 
of June; 

In the County of Nevada, on the first Monday of 
each month; 

In the County of Placer, on the first Monday of Jan- 
uary, March, May, July, September, and November; 

In the County of Plumas, on the first Monday of 
March, June, September, and December; 

In the County of Sacramento, on the first Monday 
of January, April, July, and October; 

In the County of San Bernardino, on the fourth Mon- 
day of each' month; 

In the County of San Diego, on the first Monday of 



Coim OF diviL Procedure. 97 

January, March, May, July, September, and Novem- sam*. 
ber; 

In the County of San Francisco, on the first Mon- 
^day of each month; 

In the County of San Joaquin, on the first Monday 
of January, March, May, July, September, and No- 
vember; 

In the County* of San Luis Obispo, on the first Mon- 
day of March, June, September, and December; 

In the County of San Mateo, on the first Monday of 
Febmarj' and June, and last Monday of September; 

In the County of Santa Barbara, on the first Monday 
of March, June, September, and December; 

In the County of Santa Clara, on the first Monday 
of each month; 

In the County of Santa Cruz, on the first Monday of 
January, March, May, July, September, and Novem- 
ber; 

In the County of Shasta, on the first Monday of Feb- 
ruary, April, June, August, October, and December; 

In the County of Sierra, on the first Monday of each 
month; 

In the County of Siskiyou, on the first Monday of 
Januaiy, March, May, July, September, and Novem- 
ber; 

In the County of Solano, on the third Monday of 
April, August, and December; 

In the County of Sonoma, on the first Monday of 
each month; 

In the County of Stanislaus, on the first Monday of 
January, March, May, July, September, and November; 

In the County of Sutter, on the first Monday of each 
month; 

In the County of Tehama, on the first Monday of 
January, March, May, July, September, and Novem- 
ber; 

13— Vol. L 



98 CJoDB OF Civil Procedure. 

Same. In the County of Trinity, on the first Monday of Jan- 

uary, March, May, July, September, and Ifovember; 

In the County of Tulare, on the first Monday of Jan- 
uary, March, May, July, September, and November; 

In the County of Tuolumne, on the fourth Monday 
of each month; 

In the County of Yolo, on the firat Monday of Jan- 
uary, April, July, and October; 

In the County of Tuba, on the first Monday of each 
month. 

Tenng. ,^ 100. The terms of the Probate Court must be held 

where held. 

at the county seats. 

Note. — See Sees. 66, 88, and notes, containing laws 
passed by Legislature of 1871-2; see, also, Sec. 90, ante, 
and note; see Stats. 1872. 



CHAPTER Vn. 

OP THE MUNICIPAL CRIMINAL COURT OF SAN FRANCISCO. 

Section 104. This Court continued. 

105. Judge, election and terra. 

106. Jurisdiction. 

107. Presumptions in favor of its judgments. 

108. Terms of Court. 

109. Where held. 

110. Officers and salaries. 

This Court 104. The Court known as "The Municipal Crim- 
inal Court of San Francisco," is hereby continued, 
with the jurisdiction conferred by this Chapter. 

Note. — Sec. 1 of Art. VI of the Constitution, prior 
to 1862, authorized the estahlishment of this Coui^. — 
Uridias vs. Morrill, 22 Cal., p. 473. And is also au- 
thorized as an inferior Court under Sec. 1, Art. VI of 
the Constitution, as amended in 1862. — See Ex Parte 
« Stratman, 39 Cal., p. 517. 

Judre, 106. The Judge thereof is elected by thfe electors 

oldOuon 

and term, of the City and County of San Francisco, and holds 



Code of Civil Procedure. 99 

his office for the term of four years from the first day 
of January next succeeding his election. 

Note.— stats. 1870, p. 528. 

106. Its jurisdiction extends to the trial of all Juriadio- 
indictments transmitted to it for trial by the County 

Court of the City and County of San Francisco. 

NoTB.— stats. 1870, p. 529. Sec. 796 of the Penal 
Code provides that all indictments found and triable iu 
the County Court of San Francisco must be transmitted 
to this Court for trial.— See Uridias vs. Morrill, 22 
Cal., p. 473; Ex Parte Stratroan, 89 Cal., p. 517. Sec. 
1030 of the Penal Code provides that all indictments 
found and triable in the County Court of San Fran- 
cisco must be transmitted to this Court for trial. 

107. The proceedings of this Court are construed Presump- 

■^ ^ tlODS U 

in the same manner and with like intendments as the, iJ^JJ^^nS 
proceedings of Courts of general jurisdiction, and to 
its records, orders, and judgments there is accorded 
like force, eflfect, and legal presumptions, as to the 
records, orders, judgment, and decrees of the District 
Court. 

NoTB.— Stats. 1870, p. 629. 

m 

108. There must be six terms of this Court held Terms of 

Court. 

in each year, commencing on the first Monday of Jan- 
uary, March, May, July, September, and November. 

• Note.— Stats. 1870, p. 823. 

109. This Court must be held at such place in the where 
tity and County of San Francisco as may be fixed by 

the Board of Supervisors. 

110. Th^ provisions of Sections 8, 9, 15, and 16, Officers and 
of an Act to establish a Municipal Criminal Court in 

the City and County of San Francisco, approved March 
thirty.first, eighteen hundred and seventy, are con- 
tinued in force. 

NoTB,— The portions of the Act of 1870 (fitats. 1870, 
p. 528) not included in the provisions of this Chapter, 
such as those relating to appeals, the duties of Clerks, 






100 



OoDB OP Ci^TCL Procedure. 



Sheriff, and the power of the Judge at chambers, "will 
be found under those heads in the different Codes. 

The following are the sections referred to: 

Sec. 8. The County Clerk of the City and County 
of San Francisco, shall be ex officio Clerk of said Mu- 
nicipal Criminal Court, and he is hereby authorized to 
appoint one deputy to act as Court-room Clerk of said 
Court, who shall receive a salaiy of two hundred dol- 
lars per month, and one deputy to act as office Clerk 
of said Court, who shall receive a salary of one hun- 
dred and twenty-five dollars per month, and such 
salaries shall be paid in the same manner as the sala- 
ries of the other deputies of said County Clerk. 

Sec. 9. The Sheriff of the City and County of San 
San Francisco shall be the Sheriff of said Municipal 
Criminal Court, and shall execute, either in person or 
by deputy, such of the process of said Court as may be 
required to be executed by a Sheriff, and shall be 
amenable to said Court by proceedings, as for con- 
tempt, on his failure to execute such process. And 
said Sheriff is hereby authorized to appoint a deputy, 
in addition to those now appointed by him, who shall 
act as Bailiff or Deputy Sheriff of said Court, and who 
shall receive a salary of one hundred and fifty dollars 
per month, to be paid in the same manner as the sala- 
ries of the other deputies of said Sheriff are paid. 

Sec. 15. The Judge of said Municipal Criminal 
Court shall receive a salary of five thousand dollars 
X>er annum, payable in equal monthly instalments, out 
of the same fund, and in the same manner, as the sal- 
ary of the Judge of tlie County Court of the City and 
County of San Francisco is now paid. 

Sec. 16. The District Attorney in snd for the said 
city and county may, by written certificate, signed by 
himself, appoint an Assistant District Attorney, and, 
at his pleasure, remove him ; who, during the time he 
is acting as such assistant, shall be entitled to receive a 
salary of three hundred dollars a month, payable as the 
salary of the District Attorney is 4ow made payable 
by the law. It shall be the duty of such Assistant 
District Attorney to assist the District Attorney in the 
performance of any official duty ei^oined upon the 
latter by law, and to do and perform such other duties 
in the prosecution of criminal actions in the Court 
herein established, in any of the Courts of said city 
and county, as the said District Attorney may order or 
direct. 



Code of Civil Procedure. 101 



CHAPTER Vm. 

OP JUSTICES* COURTS. 

Sectiok 112. Justices of the Peace must hold. 

113. Justices, election and term. 

114. Civil jurisdiction. 

115. Civil jurisdiction restricted^ 

116. Territorial extent of civil jurisdiction. 

117. Criminal jurisdiction. 

118. Courts, where held and when open. ^ 

112. Every Justkye pf theXcaee-mjist hold a Jus- Justices of 

.*.'"'--..-'' - ^ the Pemo« 

tice'd Court in the town'oir cilsy in wiiich'he is ^letJt^^; 'a^si how, 

N DTK.— Stats. 1868, p. 340. 



'•• - •• * • ■' 



113. Justices of the Peace are elected by the Justices . 

•' election 

electors of their respective townships or cities, at the and term, 
judicial elections, and hold their offices for two years 
from the first day of January next following their 
election. 

NoTE.--Stats. 1863, p. 340. . 

114. The civil jurisdiction of these Courts within Cjvii juris- 
their respective townships or cities extends: 

1. To an action arising on contract, for the recovery 
of money only, if the sum claimed, exclusive of in- 
terest, does not amount to three hundred dollars; 

2. To an action for damages for injury to the per- 
Hon, or for taking or detaining personal property, or 
for injuring personal property, or for an injury to real 
property, where no issue is raised by the answer in- 
volving the plaintiff's title, or possession of the same, 
if the damages claimed do not amount to three hun- 
dred dollars; 

3. To an action for a fine, penalty, or forfeiture, not 
amounting to three hundred dollara, given by statute 
or the ordinance of an incorpomted city or town; 

4. To an action upon a bond or undertaking condi- 
tioned for the payment of money, not amounting to 
three hundred dollars, though the penalty exceed that 



102 Code of Civil Procedure. 

Same. sum; thc judgment to be given for the sum actually 
due. When the payments are to be made by install- 
ments, an action may be brought for each installment 
as it becomes due; 

5. To an action to recover the possession of personal 
property, when the value of such propei-ty does not 
amount to three hundred dollars; 

6. To take and enter judgment on the confession of 

# a defendant, when the amount confessed, exclusive of 

interest, does not aiilount to tjli^ea hundred dollars. 

• •••!•• •*• 1 * •• 

... • ••• •Soflt'iJr- fcCfci^Q^^Ainjp ^Qfion is based upon the Act 

\ ;\** /•. ••t !••• : I *./pC*iS8.fstat8! iSeS, pr340). In the original section the 

V • t •***•••*** * jurirtdiction extended in actions upon a contract or to 

recover damages to an " amount not exceeding three 
hundred dollars." The Constitution (Art. VI, Sec. 9) 
declares that the jurisdiction of these Courts shall not 
trench upon the jurisdiction of Courts of record, and 
Sec. 6 of the same Article conferred jurisdiction in this 
class of cases when the sum in controversy amounts to 
three hundred dollars. To obviate this constitutional 
objection, we have stricken out the words "does not 
• exceed three hundred dollars," wherever they occurred 

in the original section, and inserted instead thereof the 
words "does not amount to three hundred dollars." 

Subdivision 5, of the original section, gave these 
Courts jurisdiction of actions of foreclosure when the 
debt secured did not exceed three hundred dollars, 
trenching upon the equity juri.tdiction cast by the Con- 
stitution upon the District Courts ; therefore we have 
omitted this subdivision, and for kindred roaFons we 
have omitted the provisions of the eighth subdivision 
of the original section, conferring jurisdiction upon 
Justices' Courts to determine the right to a mining 
claim, when the value olT the claim did not exceed 
three hundred dollars. 

1. Jurisdiction to appear from Records.— Thc 
. record of the proceedings of a Justice's Court must 

affirmatively show jurisdiction. — Jolley vs. Foltz, 34 
Cal., p. 321; King vs. Randlett, 33 Cal., p. 318; Row- 
ley vs. Howard, 23 Cal., p. 401; Lowe vs. Alexander, 
15 Cal., p. 290. 

2. Legality of Tax.— Where the legality of a tax 
is put in issue the Justice is ousted of jurisdiction. — 
People vs. Mier, 24 Cal., p. 01. 

3. Final Judgments of Justice cannot be Re- 



Code of Civil Procedure. . 103 

VIEWED BY HIM. — A JuBtice has no power to vacate a 
judgment of dismissal and reinstate the case. — O^Con- 
nor vs. Blake, 29 Oal., p. 312. A Justice has no power 
to vacate or set aside a judgment made hy him, except 
upon a motion for a new trial. And when this is done 
the proper remedy is by certiorari from District or 
County Court, and not by appeal. No appeal lies in 
such a case. The judgment of the District Court an- 
nulling such order should not, however, affirm the orig- 
inal judgment. — Winter vs. Fitzpatrick, 35 Cal., p. 289. 

4. Amendment of Complaint, bo as to show 
Jurisdiction. — A Justice has the right to allow a * 
complaint to be amended in all respects, so that the 
case may be determined on its substantial merits; and 
this whether the defect be in the statement, jurisdiction, 
or other facte.— Linhart vs. BuifT, 11 Cal., p. 280; Wrat- 
ten vs. Wilson, 22 Cal., p. 465. When a complaint in 

a Justice's Court avers a good cause of action, and in 
addition tberpto avers and asks relief for matters not 
within the jurisdiction of the Court, the action should 
not on that account be dismissed, but the Court should 
direct the complaint to bo amended, or should disre- 
gard the objectionable matter. — Howard vs. Valentine, 
20 Cal., p. 282; Van Etten vs. Jilson, 6 Cal., p. 19; G. 
V. M. Co. vs. Stackhouse, 6 Cal., p. 413; Wratten vs. 
Wilson, 22 Cal., p. 465. 

5. Grantino Appeals, Stat of Execution, etc.— 
Justices can exercise jurisdiction to grant appeals, and 
thereupon stay execution, etc. — Coulter vs. Stark, 7 
Cal., p. 244. 

6. Deserting Sea^ien. — Under the 'Acts of Con- 
gress (1790), Justices of the Peace have jurisdiction to 
try and commit deserting seamen, and no other Court 

has this power. — Ex Parte Crandall, 2 Cal., p. 144. • 

7. Money Demands— Amount in Controversy. — 
A judgment by confession for a greater amount than 
(notwithstanding the complaint was within) the juris- 
dictional amount allowed by the Constitution, was held 
void. — Feillet vs. Engler, 8 Cal., p. 76. But this case 
is commented on, and it was held that the " amount in 
controversy is what determines the jurisdiction." That 
this was the amount sued for, exclusive of costs, 'the 
judgment may exceed the amount in controversy. — 
Bradley vs. Kent, 22 Cal., p. 169; but see Keed vs 
Bemal, 40 Cal., p. 629; see note No. 6 to Sec. 44, 
ante. Formerly, under the Constitution, the jurisdic- « 
tion of the Justices^ Court was limited as to m6ney 
demands to an ** amount not exceeding two hundred 
dollars."— Feillett vs. Engler, 8 Cal., p. 76; Zander vs. 



104 Code op Civil Procedurb. 

Coe, 5 Cal., p. 280; Ford vs. Smith, 5 Cal., p. 331; 
Black V6. Herrick, 5 Cal., p. 279; Hart vs. Mom, 6 
Cal., p. 161; Freeman vs. Powers, 7 Cal., p. 104; 
Small V6. Gwinn, 6 Cal., p. 447; Malson vs. Vauf^hn, 
23 Cal., p. 61. But since 1863 the juriddiction has been 
establii^hed at any Hum not amountin j^ to three hundred 
doUars.—Cariaga vs. Dryden, 29 Cal., p. 307; Max- 
iield vs. Johnson, 30 Cal., p. 545; see Reed vs. Bemal, 
40 Cal., p. 629. Justices' Courts would have no juris- 
diction where a defendant sets up a counter claim for a 
sum exceedingly three hundred dollars. — ^Maxfield vs. 
Johnson. 30 Cal., p. 545. Plaintiff oommenced three 
actions in a Justices' Court for the recovery of the 
same property, the actions being against several de- 
fendants. The property sued for was of value less thai^ 
throe hundred dollars. Under Section 1048 of this 
Code ii 526) the several actions were consolidated. 
The Court held, the value of the property being less 
than three hundred dollars, that the Justice hf^ juris- 
diction. — Cariaga vs. Dryden, 29 Cal., p. 307. 

8. Tbkbpass on Bkal Propsett. — A Justices' 
Court has jurisdiction of an action of trespass on real 
property, the damages claimed being less than three 
hundred dollars. — Pollock vs. Cummings, 38 Cal., p. 
683. But the right of possession must not be put in 
issue. — Cornett vs. Bi.^hop, 39 Cal., p. 319. 

9. Damages for Injury to, or Detention of. 
Mining Claims.— It was held that Justices' Courts 
could not take jurisdiction of suits to recover dahiages 
for injury to a mining claim, or for its detention. — Van 
Etten vs. Jilson, 6 Cal., p. 19. 

10. Damage for Diversion of Water— Water 
Bights. — A Justice of the Peace has no power ton- 

« ferred upon him to try a cause where there is an 

alleged injury arising out of a diversion of water from 
the natural or artificial channel in which it is con- 
ducted. — Hill vs. Newman, 5 Cal., p. 445. 

11. Action for Penalty for charging exces- 
sive fare by Bailroad Company.— See Beed vs. 
Omnibus Bailroad Co., 33 Cal., p. 212. 

12. Judgment on Confession of Defendant. — 
Feillett vs. Engler, 8 Cal., p. 76. 

Civil juriaV 115. The jurisdiction conferred by the last section 

diction ^^ 

restricted. , shall not extend, however: 

Rs^ 1. To a civil action in which the title or possession 
V of real property is put in issue; 
'^^ 2. Nor to an action or proceeding against ships, 



s/ 



V 



CoDB OP Civil ProcA)urb. 106 

vessels, or boats, or against the owners or masters 
thereof when the suit or proceeding is for the recov- 
ery of seamen's wages for a voyage performed in 
whole or in part without the waters of this State. 

Note.— stats. ISaS, p. 340. 

Cases involving Title or Possession of Beal 
Property. — Tho Constitution confers on the District 
Courts original jurisdiction in all casef at law which 
involve the title or possession of real property, and on 
the Supreme Court appellate jitrisdiction in all such 
cases.— Art. VT, Sees. 4, 6. Tho ninth section of the 
sanne Article of the Constitution authorizes the Legis- 
lature to fix by law the powers of Justices of the 
Peace, provided such powers shall not in any case 
trench upon the jurisdiction of the several Courts of 
record; and the Act concerning the Courts of justice 
of this State and judicial officers provides that Courts 
of Justices of the Peace shall not have jurisdiction in a 
civil action in which the title or possession of real 
estate shall necessarily come in question. — Laws 18Q3, 
p. 340, Sec. 49. The objection suggested is untenable, 
because the action, though commenced in a Justice^s 
Court for damages in a sum less than three hundred 
dollars, upon tho filing of the defendant's answer in- 
volved a question of title to the land on which stood 
the fence that was destroyed. The cause was trans- 
ferred fnom the Justice's Court to the District Court, 
upon tho filing of the defendant's verified answer, 
showing that the determination of tho action would 
necessarily involve the decision of a question of title to 
real property, as provided by the five hundred and 
eighty-first section of the Practice Act (Sec. 838, post), 
and upon its becoming so transferred, the District 
Court obtained complete jurisdiction in the premises. — 
Dohcrty vs. Thayer, 31 Cal., pp. 144, 145. 

In Holman vs. Taylor, 31 Cal., p. 338, the title of 
the respectivo paities to certain parcels of real estate 
was in issue, and in ascertaining the meaning of the 
clause of the Constitution, **all cases at law which 
involve the title or possession of real property," the 
6ul]rject of possession was considered, but only by way 
of argument, and for the purpose of illustration; and 
in the discussion the language of the Court was not in 
all respects sufiSciently guarded and definite. To con- 
stitute a case which involves the possession of real 
property, it is not enough that the possession is a &ct 

14— Vol. I. 



y^ 



106 Code 'of Civil Procedure. 

in controversy, or incidentally in question, or that 
the fact of possession is in issue; but the right of 
possession must be involved in the action. The para- 
phrase of the clause of the Constitution, given in Hol- 
man vs. Taylor, would be more accurate, and would 
more fully express the meaning of that clause, if ^ven 
in this language: " Cases at law in which the title or 
right of possession of real property is a material fact 
^ in the case, upon which the plaintiff relies for a recov- 
ery, or the defendant for a defense." The allegation of 
the ri^ht of possession is quite, different from that of 
possession in fact, which may constitute merely the 
basis of some right or claim constituting the cause of 
action, or the defense to the action. In an action for 
use and occupation, the possession of the defendant 
may be alleged on the one side and denied on the other 
without presenting an issue as to the right of posses- 
sion. And so, in an action of trespass upon real prop- 
erty, the plaintiff may recover upon alleging and 
showing, in addition to the injury complained of, his 
possession of the premises, and his rigfU to the posses- 
sion is not involved unless the defendant tenders an 
issue upon that fact, and in such case, as was said in 
Holman vs. Taylor, the right of recovery depends both 
upon possession in fact and the right of possession. It 
was not the intention to withdraw from Justices of the 
Peace and other inferior Courts, and confer upon the 
District Courts, jurisdiction of cases of the character 
of those mentioned, in which 'the right of possession is 
not involved; but it was intended to give to the latter 
Courts jurisdiction of cases involving the right of pos- 
session of real property. — Pollock vs. Cummings, 88 
Cal., p. 685. See, also, Coniett vs. Bishop, 39 Cal., p. 
319; Cullen vs. Langridge, 17 Cal., p. 69. 

Territorial 116. The civil lurisdiction of Justice's Courts, 

extent of •* 

civil juris- within an incorporated city, extends to the limits of 
such city, or township in which the city is situated. 
Mesne and final process of Justices* Courts may be 
issued to any part of the county in which they are 
held. 

Note.— Stats. 1863, p. 340. 

Criminal 117. Thcsc Courts have jurisdiction of the follow- 

unadiction ^ , "^ , 

Ni^ug public oflenses, committed within the respective 
Nsiy counties in which such Courts are established: 
1. Petit larceny; 



":\ 



OoDB OF Civil Procedure, 107 

2. Assault and battery, not charged to have been 

committed upon a public officer in the discharge of 

his duties; ' «p 

3. Breaches of the peace, riots, affrays, committing 
a willful injury to propei-ty, and all misdemeanors pun- \ 
ishable by fine not exceeding one thousand dollars, or 
imprisonment not exceeding one year, or by both such 

fine and imprisonment. ^ 

Note.— Stats. 1870, p. 579. An Act of thq Legis- 
lature, conferring criminal jurisdiction on Justices* 
Courts, is constitutional. — People vs. Fowler, 9 Cal., 
p. 85. 

118. These Courts may be held at any place ^^'J.^'j^^j^ 
selected by the Justice holding the same, in the town- JpJn^^**'* 
ship or city for which he is elected, and they are 
always open for the tmnsaction of business. 

Note.— Stats. 1863, p. 841. 



CHAPTER IX. 

OF POLICE COURTS. 
Section 121. Organization, etc., provided for in Political Code. • 

121. Police Courts are established in incorporated Qrgani7a- 

■^ tion, etc., 

cities and towns, and their organization, jurisdiction, Po^in^pJnt- 
and powers provided for in The Political Code, Part *^*^ ^^°' 
IV. 

Note.— People vs. Provines, 34 Cal., p. 520. 



CHAPTER X. 

6ENBBAL PROVISIONS RESPECTING COURTS OF JUSTICE. 

Articlx I. Publicity of their proceedikqb. 

II. Incidental powers and duties op Courts. 
III. Judicial days. 



108 ^ CoDB OP Civil Peocedure. 

Articlic IV. Pbockkdinos when Judges do not attend to hold 

A Court. 
V. Particular provisions respectinq the places of 

HOLDING the CoURTS OF JUSTICE. 

VI. Seals of the Courts of justice. 



v-^vt^u 



ARTICLE I. 

publicity of the PROCEEDINGS OF THE COURTS OF JUSTICE. 

Section 124. Sittings public. 

125. Limitation on preceding section. 

Sittings 124. The sittings of every Court of justice are 

public, except as provided in the next section. 

Note.— Stats. 1863, p. 342. 

Limitation 125. In an action for divorce the Court may direct 

on preced> . , 

ingaection. the trial of any issue of feet joined therein to be pn- 
^^cU. cL vate, and may exclude all pei'sons, except the officers 
/ /^-W' Qf the Court, the parties,- their witnesses, and counsel. 

Note.— State. ISas, p. 842. 



ARTICLE II. 
incidental poweks and duties of courts. 

• Section 128. Powers of Court respecting the conduct of judicial pro- 

ceedings. 

129. Courts of record may make rules. 

130. When rules talce effect. 

Powers of 128. Everv Court has power: 

Court "^ ^ 

respecting 1. To preserve and enforce order in its immediate 

the condtiot *■ 

Jric'elJd-^^ presence; 

ingB. 2. To enforce order in the proceedings before it, or 

before. a person or peraons empowered to conduct a 
judicial investigation under its authority; 

3. To provide for the orderly conduct of proceed- 
ings before it or its officers; 

4. To compel obedience to its judgments* orders, 
and process, and to the orders of a Judge out of Court 
in an action or proceeding i)ending therein; 



Code op Civil Pbockdurb. ' 109 

5. To control, in furtherance of justice, the conduct Same. 
of its ministerial officers, and of all other persons in 

anj manner connected with a judicial proceeding be- 
fore it, in every matter appertaining thereto; 

6. To compel the attendance of persons to testify in 
an action or proceeding pending therein, in the cases 
and manner provided in this Code; 

7. To administer oaths in an action or proceeding 
pending therein, and in all other cases where it may 
be necessary in the exercise of its powers and duties; 

8. To amend and control its process and orders, so 
as to make them conformable to law and justice. 

NoTB. — Subds. 1, 2, 4, and the first clause of Sul>d. 5, 
sjibstantially embraces the provisions of Sec. 65 of the 
Act of 1863 (Stats. 1868, p. 842); the other subdivisions 
are taken from the New York Code, because they con- 
cisely embody various statutory provisions scattered 
through our laws, or well settled common law princi- 
pies, applicable to the powers of judicial tribunals. 
This arrangement presents them in a form convenient 
to the profession, and in their logical order. 

129. Every Court of record may make rules, not Coortsof 

record may 

mconsistent with the laws of this State, for its own make ruios 
government and the government of its officers; but 
such rules must neither impose a tax or charge upon 
any legal proceeding nor give an allowance to any 
officer for services. 

Note.— Stats. 1863, p. 335; 1870, p. 528. 

130. The rules adopted by the Supreme Court when mica 

■^ * take effect 

tak€ eft'ect sixty days, and those adopted by other 
Courts, thirty days, after their publication. 

Note.— SUts. 1863, p. 335. 



ARTICLE III. 

JUDICIAL DATS. 



SkctioK 138. Days on which Courts, etc., may be held. 

134. Bays .on which Courts shall lyt be opened. 

135. Court appointed, etc., for those days, deemed for next 

day. 



110 Code OP Civil Prockdurb. 

Dajrson 133. The Courts of justice may be held, and judi- 

Jourtej^ cial business may be transacted, on any day except as 
be held. provided in the next section. 

NoTK.— Stats. 1863, p. 348. 

Days on 134. No Court can be opened, nor can any judicial 

J^^rtsBbftii business be transacted, on Sunday, ^n the first day 

opened. ^f January, on the fourth of July, on Christmas or 

Thanksgiving day, or on a day on which the general 

or the judicial election is held, except for the following 

purposes: 

1. To give, upon their request, instructions to a jury 
when deliberating on their verdict; 

2. To receive a verdict or discharge a jury; 

8. For the exercise of the powers of a magistrate 
in a criminal action, or in a proceeding of a criminal 
nature. 

Note.— Stats. 1868, p. 843. 

Court 135. If any of the days mentioned in the last sec- 

appointed, 

thoM dav8 ^^^^ happen to be the day appointed for the holding 
nex?day?' ^^ ^ Court, or to which it is adjourned, it is deemed 
appointed for or adjom'ned to the next day. 



ARTICLE IV. 

PHOCEEDIKOS WHEN JUDGES DO NOT ATTEND TO HOLD A COURT. 

Section 180. Adjournment of Court for absence of Judge. 
140. Same. 

. 

Adjourn- 130. K no Judge attend on the day appointed for 
abMno'e of ^^^l^^g ^^^ Court, or ou the day to which it may have 
Judge. been adjourned, before noon, the Sheriff or Clerk must 
adjourn the Court until the next day at ten o'clock; and 
if no Judge attend on that day, before noon, the Sheriff 
or Clerk must adjourn the Court until the following 
day, and so on, from day to day, for one week. 

NoTj^-Stats. 1868, p. 844. Thomas vs. Fogarty, 19 
Cal., p. 644; People vs. Sanchez, 24 Cal., p. 17. 



Code of Civil Procedure, 111 

140, If no Judge attend for. one week, tlie Sheriff Same. 
or Clerk must adjourn the Court for the term, unless 
the Judge, by written order, directs it to be adjourned 
to some day certain, fixed in such order; in which 
case, they must so adjourn it. 

Note. — See note to preceding sections. 



ARTICLE V. 

PARTICULAR PROYISIONS RESPECTING THE PLACES OF HOLDING THE 

COURTS OP JUSTICE. 

SiccTiON 142. Judge may, in certain cases, change place of holding 

Court. 

143. Parties to appear at place appointed. 

144. Booms, etc., when Judge may order. 

142. A Jud^e authorized to hold or preside at a Judgemay, 

° * in certain 

Court appointed to be held in a county, city, or town, cnsM, 
may, by an order filed with the County Clerk, and ElSSIn**/ 
published as he may prescribe, direct that the Court ^""^ 
be held or continued at anj^other place in the city, 
town, or county than that appointed, when war, insur- 
rection, pestilence, or other public calamity, or the 
dangers thereof, or the destruction of the building 
appointed for holding the Court, may render it neces- 
sary; and may, in the same manner, revoke the order, 
and, in his discretion, appoint another place in the 
same city, town, or county, for holding the Court. 

NoTB.— Stats. 1863, p. 344. 



143. When the Court is held at a place appointed. Parties to 

appear at 

place 

appointed. 



''"'*■'*'' appear at 

as provided in the last section, every person held to pi^ce 



appear at the Court must appear at the place so 
appointed. 

NoTB.— stats. 1863, p. 344. 

144. If suitable rooms for holding the District Rooms, 

*>, otc., when 

tourts. County Courts, and Probate Courts, and the J«d«o ^ 

m *^*y order. 

chambers of the Judges of such Courts, be not pro- 
vided in any county by the Supervisors thereof, to- 



112 



Code of Civil Proceditbb. 

gether with attendants, furniture, fuel, lights, and 
stationery sufficient for the transaction of business, 
the Courts may direct the Sheriflf of such county to 
provide such rooms, attendants, furniture, fuel, liglita, 
and stationery, and the expenses thereof are a charge 
against such county. 

Note.— SUts. 1863, p. 345. 



ARTICLE VI. 



What 
Courts 
have seals. 



SEALS OF THE COURTS OF JUSTICE. 

Section 147. What Courts have seals. 

148. Present seals to continue. 

149. Seals for Courts not now provided with. 

150. Private seal to be used, when. 

151. Seals, by whom kept. 

152. To what proceedings to be affixed. 

147. Each of the following Courts has a seal: 

1. The Supreme Court; 

2. The District Court|; 

3. The County Courts; 

4. The Probate Courts; 
6. The Municipal Criminal Court of the City and 

County of San Francisco; 

6. The Police Court of the City and County of San 
Francisco. 

Note.— Stats. 1863, p. 344. 

148. The seal now used by the Supreme Court 
shall be the seal of that Court; and where seals have 
been provided for the District, County and Probate 
Courts, Municipal Criminal and the Police Court of 
the City and County of San Francisco, such seals shall 
continue to be used as the seals of those Courts. 

Note.— State. 1863, p. 344. 

149. The several District, County, and Probate 

v?de<f with. ^^^^s> ^^1' which Separate seals have not been here- 
tofore provided, shall direct their respective Clerks to 



Vrcont 
sealfl to 
continue. 



Seals for 
Courts not 



Code op Civil Procedurb. 118 

procure seals, which shall be devised by the respec- Samo, 
tive Judges of such Courts, and shall have the follow- 
ing inscriptions surrounding the same: 

1. For the District Courts: " District Court, 

County, California." (Inserting the name of the 
county;) 

2. For the County Courts: " County Court, 

County, California." (Inserting the name of the 
county;) 

8. For the Probate Courts: "Probate Court, 

County, California." (Inserting the name of the 
county.) 

Note.— stats. 1863, p. 344. 

150. Until the seals devised, as provided in the Private 

^ seal to be 

last section, are -procured, the Clerk of each Court «»ed,when 
may use his private seal, whenever a seal is required. 

Note.— Stat8. 1863, p. 344. 



161. The Clerk of the Court must keep the seal Soaia.by 
thereof. 



whom kept. 



152. The seal of the Court need not be affixed to To what 

proceed- 
ings to be 



any proceedings therein, except: 

1. To a writ; 

2. To the proof of a will, or the appointment of An 
executor, administrator, or guardian; 

3. To the authentication of a copy of a record or 

other proceeding of the Court, or an officer thereof, 

for the purpose of evidence in another Court. 

ff 

NoTK. — Stats. 1863, p. 344. The provision permit- 
ting seals to be impressed on paper is omitted, as a 
general provision to the same end is contained in the 
preliminary provisions of this Code. 



IMS 

mx 



affixed. 



15— Vol. I. 



114 Code of Civil Procbdubb. 

TITLE II. 

OP JUDICIAL OFFICERS. 

Chapteb I. Of judicial officers in general, 

n. Of the powers and duties of Judges at 

chambers. 
in. Particular disqualification of Judges. 
IV. Incidental powers and duties of judicial 

officers. 
V. Miscellaneous provisions respecting 
Courts and judicial officers. 



CHAPTER i; 

OF JUDICIAL OFFICERS IN GENERAL. 

SscTioif 156. Qualifications, as to residence, of Justices of Supreme 

Court. 

157. Qualifications, as to residence, of District Judges. 

158. Places of residence of Judges. 

159. Re&idence in San Francisco construed. 

160. District Judges may hold Courts in another district. 

161. County and Frohate Judges may hold Court in another 
« county. 

162. County or Probate Judge who may hold term in another 
county, how designated. 

^^ifica- 156. Kg person is eligible to the office of Justice 

tions, aato,-^ ^ _ .. 

residence, of the Supreme Court who has not been a citizen of 

of Justices *■ 

jgllj^'^eme the United States and a resident of this State, for two 
years next preceding his election. 

Note.— stats. 1863, p. 833. 






(jaaUfica- 157. No pcrsoii is eligible to the office of District 
residence, Judffc who has not been a citizen of the United States 

of District ^ 

Jadses. and a resident of this State for two years, and of the 
district one year next preceding his election. 

NoTB.— stats. 1868, p. 336; People vs. Turner, 20 
Gal., p. lii; People vs. Be la Guerra, 40 Gal., p. 311. 



Code op Civil Procedure. 



115 



158. Each District Judo^e must reside in his dis- Places of 

. ^ roBidence 

tnct, and each County arid Probate Judge must reside of judgos. 
at the county seat of his respective county. 

NoTK.— stats. 1863, p. 335. 

159. A residence in any part of the City -and Ropidence 
County of San Francisco is, within the meanine: of the Franciwo 

J ' o coDstraed. 

two preceding sections, i^residence in the judicial dis- 
tricts' embracing portions of that city. 

Note.— Stats. 1863, p. 336. 



160. A District Judge may hold a Court in any 
county in this State, upon the request of the Judge of 
the district in which such Court is to be held; and 
when, by reason of sickness or absence from the State, 
or fix)m any other cause, a Court cannot be held in any 
county in a district by the Judge thereof, a certificate 
of that fact must be transmitted by the Clerk to the 
Governor, who may thereupon direct some other Dis- 
trict Judge to hold such Court. 

Note.— Stats. 1863, p. 336. 

161. Any County or Probate Judge may hold terms, 
or portions of terms, of the County or Probate Court, 
and perform any or all of the duties of County or Pro- 
bate Judge in any other county of this State, as well 
as in that for which he was elected, in cases of sick- 
ness of the proper Judge, or to hear, try, adjudicate, 
and determine all causes and matters in which the 
County or Probate Judge of the proper county is 
interested, or has been employed as an attorney, or is 
disqualified by law from trying or adjudicating. 

Note.— See People vs. MeHon, 40 Cal., p. 648. The 
text held to be constitutional. — Id. Where the record 
of the Court does not show for what reason the Jud^j^ 
of one county holds Court for the Judge of another, 
the existence of some one of the causes mentioned in 
the statute will be presumed. — Id. 






District 

Judges 

may hold , 

Courts in <w ^ 

another TV ^ 

district ^^ k 



>5 



Connty and 

Probate 

Judges 

may hold 

Court in 

another 

county. 



p* 



X 



116 



K., 



^jonty or 
\ Probate 
Judge who 
(K may hold 
' term in 
another 



\ 



county, 
howdes 
nated. 



esig- 







Code of Civil Procedure. 

162. When, from any of the causes mentioned in 
the preceding section, a term, or portion of a term, of 
the County or Probate Court cannot be held in a county 
by a County or Probate Judge thereof, the Judge dis- 
quaUfied may, by consent of the parties to the actions 
or proceedings which such Judge is disqualified fi'om 
adjudicating, designate the County or Probate Judge 
of some other county to hola such term or poition of 

I 

a term; and if the parties fail thus to consent, a cer- 
tificate of the fact of such disqualification, or in the 
case of sickness of the Judge, then of the feet of such 
sickness, must be transmitted by the County Clerk of 
such county to the Governor, who must thereupon 
direct some County or Probate Judge of a neighboring 
county to hold such term or part gf a term. 

Note. — See People vs. Mellon, 40 Cal., p. 648. 



CHAPTER n. 



Powers of 
Justices of 
Supreme 
Court at 
chambers. 



^■#* 



OF THE POWERS AND DUTIES OF JUDGES AT CHAMBERS. 

Section 166. Powers of Justices of Supreme Court at chambers. 

166. Powers of District and County Judges at chambers. 

167. Powers of Probate Judges at chambers. 

1 66. The Justices of the Supreme Court:, and each 
of them, may, at chambers, grant all orders and writs 
which are usually granted in the first instance upon an 
ex parte application, except writs of review, mandate, 
and prohibition, and may, in their discretion, hear 
applications to discharge such orders and writs. 



Powers of 
District 



166. District and County Judges, at chambers, 
and County niay grant all orders and writs which are usually 
chamber?, granted in the first instance upon ex parte applications, 

and may, at chambers, hear and dispose of such writs 

and of motions for new trials. 



Code of Civil Procbdurb. 117 

yoTE. — 1. Graktino Continuances. — It was held 
that a County Judge at chambers cannot grant a con- 
tinuance of a cause which was pending and set down 
for trial at a future day in the County Court. — Norwood 
vs. Kenfield, 34 Cal., p. 329. 

2. Ckrtiokari Issued at Chambers. — The Dis- 
trict Judge may issue writs of certiorari and hear 
them on their return at chambers. — People vs. Sup. 
Marin Co., 10 Cal., p. 344. 

3. Certain Orders nunc pro tunc cannot be 
MADE. — A Judge at chamber^ cannot make an order 
directing the Clerk to enter in the minutes of the 
Court nunc pro tunc an order alleged to have been 
made in open Court. After the adjournment of a term 
the Court cannot direct the entry nunc pro twic of an 
order mnde during the ac^oumed term where the 
records do not show that such an order was made. — 
Hegeler vs. Henckell, 27 Cal., p. 491. 

4. Hearing Motion to Strike Out Pleadings. — 
The general rule as to powers of Judges at chambers 
b, Uiat all judicial business must be transacted in term, 
whether there is any express direction to that effect or 
not. Such business as may be transacted out of Court 
is exceptional, and must find its warrant in some 
express provision of the statute. — Larco vs. Casa- 
nentiva, 30 Cal., p. 564. A District Judge at cham- 
bers ha» not jurisdiction to hear motions to strikeout 
pleading^.— Bond vs. Pacheco, 30 Cal., p. 532. 

5. Order Setting Aside Execution, Etc. — A 
Judge at chambers has no jurisdiction to make an 
order setting aside an execution and perpetually stay- 
ing its enforcement. — Bond vs. Pacheco, 30 Cal., p. 532. 

6. What Orders in Insolvency Proceedings 
CAN BE MADE ^Y CouNTY J UDGES.-— Certain orders 
in insolvency proceedings (under State Act) can be 
made by County Judge at chambers. — Flint vs. Wil- 
eon, 36 Cal., p. 24. 

7. Writs of Mandate, Review, Quo Warranto, 
Etc. —The Legislature is not prohibited by the Con- 
sititution from confening upon the Judge authority 
to hear and determine actions and proceedings at 
chambers. Such authority is granted in respect to 
writs of mandate, review, and quo warranto, and 
special proceedings, to determine the validity of a cor- 
poration election. A d(•cii^ion in these cases is a judg- 
ment, and an appeal therefrom is given by Sec. 963, 
post. — Brewster vs. Hartley, 37 Cal., p. 15. 

8. Arrest of Process Issued in Void Judg- 
ment. — Where a judgment upon which the execution 



118 Code of Civil Procedure, 

18 based, and the execution itself are void upon their 
face, a Couit has entire control over the process and 
may arrest it. A Judge at chambers has authority to 
order a suspension of the execution till a motion before 
the Court to recall or quash it can be heaid. — Lo.^an 
vs. Uillegrass, 16 Cal., p. 201; see, also, Chipman vs. 
Bowman, 14 Cal., p. 158; Bell v?. Thompson, 19 Cal., 
p. 708; Sanchez vs. Carriaga, 31 Cal., p. 172. 

9. JuDOK AT Chambers cannot hecide certain 
CoNTRoVKKsiKB. — "Action for damages for trespa&s 
alleged to have been committed by defendants upon 
certain quartz mining claims; and also, for a peipetual 
injunction against trespasses, ^hich was gianted. 
Defendants deny all the allegations of the complaint, 
and set up ownership of certain mining giounds. 
Verdict generally *for defendants,* and judgment in 
their favor for costs. Defendants move to amend the 
judgment by dissolving the injunction. Motion de- 
nied, but the judgment modified so as to pevmit defend- 
ants to work the ground s(5t up in their answer. After 
the term had expired, defendants appeal fiom this 
order refusing to dissolve the injunction, and subse- 
quently, upon defendants giving bond, the Judge, in 
chambers, made an ex paite oider directing plaintifiV 
to yield possession of the ground describ<?d in the 
answer to defendants, which order plaintiffs refused to 
obey; and then followed an oider to i^how cause why 
they should not be punished for contempt. Held: that 
the Court had no power to make the ex parto older for 
the restitution of possession or the induction of defend- 
ants into jx^gsession of the pi-emises, as this was in 
effect to decide the whole controveisy in limine^ and 
to execute the judgment by an ex parte older; that 
the possession by plaintiffs o\' the premises was prop- 
erty, and could not be disposed of except in due 
course of law; and that all the subsequent orders — 
for contempt, etc. — being dependent on this, fall with 
it.'* — Syllabus, Brennan vs. Gastfm, 17 Cal., p. 375. 

10. Making Order for Discharge of Guardian, 
Etc. — See note to next section. 

Pttworsof 167. The Judges of the Probate Court may, at 
Judges at chambers, appoint appraisers, receive inventories and 

chambers. ' x jt x jt ? 

accounts to be filed in the Probate Court; suspend the 
powers of executors, administrators, or guardians, in 
the cases allowed by law; grant special letters of 
administration or guardianship; approve claims and 



Code of Civil Procedure. 119 

« 

bonds; and direct the issuance, from the Probate 
Courts, of all writs and process necessary in the exer- 
cise of their power. 

Note. — Stats. 1863, p. 339. Probate Judji^e may, at 
chamberg, discharge a ^ardian or perform any act 
necessarily preliminaiy to such act. — Warder vs. 
Elkins, 38 Cal., p. 439. 



CHAPTER m. 

PARTICULAR DISQUALIFICATION OF JUDGES. 

Sectiok 170. When disqualified. 

171. nA to act as attorney in his own Court. 

172. Certain Judges not to act as attorneys. 

173. No judicial officer to have a partner. 

170. A Judffe cannot act as such in any of the fol- wh«n dis- 

_ . ° •^ qualiflod. 

lowing cases : 

1. In an action or proceeding to which he is a party, 
or in which he is interested; 

2. When he is related to either party by consan- 
guinity or affinity within the third degree, computed 
according to the rules of law; 

3. When he has been attorney or counsel for either 
party in the action or proceeding; 

—But this section does not apply to the arrangement 
of the calendar or the regulation of the order of busi- 
ness, nor to the power of transfemng the cause to 
another county. 

Note.-— Stats. 1863, p. 343. The three causes stated 
in the text are the only ones which work a disqualifica- 
tion of a judicial officer. The exhibition by a Judge 
of partisan feeling, or the unnecessary expression of an 
opinion upon the justice or merits of a controversy, 
though exceedingly indecorous, improper, and repre- 
hensible, as calculated to throw suspicion upon the 
judgments of the Court and bring the administration 
of justice into contempt, are not, under the statute, 
sufficient to authorize a change of venue on the ground 
that the Judge is disqualified from sitting. The law 



120 Code of Civil Procedure. 

establishes a different rule for determining the qualifi^ 
cation of Judges from that applied to jurors. The 
reason for the distinction is obvious. The province of 
the jury is to determine from the evidence the issues of 
fact presented by the parties, and their decision is final 
in all cases where there is a conflict of testimony. The 
province of a Judge is to decide such questions of law 
as may arise in the progress of the trial. His decisions 
upon these points are not final, and if erroneous, the 
party has his remedy by appeal. — McCauley vs. Weller, 
12 Cal., p. 500. 

Not to act 1.71 . A Judge cannot act as attorney or counsel in 

u,9 attorney 

in Lis own a Court in which he is Judge, or in an action or pro- 
ceeding removed therefrom to another Court for trial 
or review, or in an action or proceeding from which 
an appeal may lie to his own Court. ' 

Note.— Stats. 1863. p. 343. 

Gartain 172. A Justicc of the Supreme Court, or Judere 

Judgosnot ? o 

to act as of the" District Court, cannot act as attorney or counsel 

attomoys. ' "^ 

in any Court of this State, except in an action or pro- 
ceeding to which he is a party on the record. 

Note.— Stats. 1863, p. 343. 

No judicial 173. No Judgc Or othcr elective judicial officer, 

offioor to , , 

have a or Distiict Court Commissioner, shall have a partner 

partner. _ ' * 

acting as attorney or counsel in any Couit of this 
State. 

Note.— Stats. 1863, p. 343. 



CHAPTER IV. 

INCIDENTAL POWERS AND DUTIES OP JUDICIAL OFFICERS. 

Section 176. General powers of Judges out of Court. 

177. Powers of judicial officers as to conduct of proceedings 

before them. 

178. Same. 

179. Same. 



r 



Code of Civil Procedure. 121 

176. A Judffe may exercise, out of Court, all the General 

c> J ^ ' powers of 

powers expressly conferred' upon a Judge, as contm- ^f"^$^rt"' 
distinguished from the Court. 

177. Every judicial officer has pbwer: 

1. To preserve and enforce order in his immediate Powers of 

^ jadicial 

presence, and in the proceedings before him, when he to'^^^JJ^t 
is engaged in the performance of an official duty ; ?n^s'bofo?J 

2. To compel obedience to his lawful orders, as pro- ^^i 
videdinthis Code; 

3. To compel the attendance of persons to testify in 
a proceeding before him, in the cases and manner pro- 
vided in this Code; 

4. To adminiflter oaths to persons in a proceeding 
pending before him, and in all other cases where it 
may be necessary, in the exercise of his powers and 
duties. , 

178. For the effectual exercise of the powers con- Some, 
ferred by the last section, a judicial officer may punish 

for contempt, in the cases provided in this Code. 

Note.— See Sees. 1209 to 1222, inclusive, post. 

179. The Justices of the Supreme Court, and the Same. 
Judges of the District and County Courts, have power 

in any part of the State, and Justices of the Peace 
within their respective counties, and PoUce Judges, 
and Judges of Municipal Courts, within their respec- 
tive cities or towns, to take and certifv: 

1. The proof and acknowledgment of a conveyance 
of real property, or of any other written instrument; 

2. The acknowledgment of satisfaction of a judg- 
ment of any Court; 

3. An affidavit or deposition to be used in this State. 

Note.— Stata. 186a, p. 846. 

16— Vol. I. 



122 



Code of Civil Procedure. 



CRAPTER V. 



MISCELLANEOUS PROVISIONS RESPECTING COURTS AND 

JUDICIAL OFFICERS. 

Section 182. Subsequent applications for orders, when prohibited. 
183» Violation of last section. 

184. No proceeding affected by a vacancy in office of 

Judge, etc. 

185. Proceedings to be in the English language, except in. 

certain counties. 

186. Abbreviations and figures. 

187. Means to be used to execute judicial powers in certain 

cases. 



Subsequent 
Bpiilica- 
tions for 
orders, , 



182. If an application for an order, made to a 
Judge of a Court in which the action or proceeding is 
proWbited. P^u^ling) 1^ refused, in whole or in part, or is granted 
conditionally, no subsequent application for the same 
order can be made to any Court Commissioner, or aoy 
other Judge, except of a higher Court; but nothing 
in this section applies to motions refused for any 
informality in the papers or proceedings necessary to 
obtain the order. 



Violation 
of la£t 
section. 



No 

proceeding 
affected by 
a vacancy 
in office of 
Judge, etc. 



Proceed- 
ings to bo 
in the 
English 
language, 
except m 
certflin 
counties. 



Note.— Stats. 1863, p. 345. 

183. A violation of the last section may be pun- 
ished as a contempt, and an order made contraiy 
thereto may be revoked by the Judge who made it, 
or vacated by a Judge of the Couit in which the 
action or proceeding is pending. 

Note.— Stats. 1863, p. 345. 

184. No proceeding in any Court of justice, in an 
action or special proceeding pending therein, is 
aftected by a vacancy in the office of all or any of the 
Judges, or by the failure of a term thereof. 

Note.— Stats. 1863, p. 345. 

185. Every written proceeding in a Court of jus- 
tice in this State, or before a judicial officer, except in 
the Counties of San Luis Obispo, Santa Barbara, Los 



Code of Civil Procedure. 123 

Angeles, and San Diego, must be in the English lan- 
guage, and in the excepted counties may be either in 
the English or Spanish language. 

Note.— Stats. 1863, p. 345. 

186. Such abbreviations as are in common use Abbrevia- 

tion8 and 

may be used, and numbers may be expressed by fia^rw. 
figures or numerals in the customary manner. 

Note.— Stats. 1863, p. 844. 

187. When iurisdiction is, by this Code or by any Moans to 

•^ ' -^ J J beuBodto 

Other statute, conferred on a Court or judicial oflScer, ^fjf^^^f 
all the means necessary to carry it into effect are also certaS^" 
given; and in the exercise of the jurisdiction, if the 
course of proceeding be not specifically pointed out 
by this Code or the statute, any suitable process or 
mode of proceeding may be adopted which may 
appear most conformable to the spirit of this Code. 

Note.— This section is adopted from the New York 
Code. The italicized words have been added by this 
Commission. 



oasee. 



y/-. S. {fi-ij- / f^»-^ ' 



TITLE III. 

OP PERSONS SPECIALLY INVESTED WITH POWERS OP 

A JUDigiAL NATURE. 

" Chapter I. Of jurors. 

n. Of Court Commissioners. 



CHAPTER I. 

OF JUROl^S. 



{ 



A&nCLK I. JUBORS IX GENERAL. 

II. QUALinCATIOKS AND EXEMPTIONS OF JURORS. 

III. Manner of selecting and returning jurors for 
Courts of record. 



124 CoDB OF Civil Procbdure. 

Abticlk IV. Time akd manner, or drawing jurors por CorRTS 

OF RECORD. 

V. Manner of summoning jurors for Courts op 

RECORD. 

VI. Manner op summoning jurors for Courts not op 

RECORD. 

VII. Manner op summoning juries op inquest. 
VIII. Obedience to summons, how enforced. 
IX. Of impaneling a Grand Jury. 
X. Of impaneling trial jury in Courts of record. 
XI. Of impaneling a trial jury in Courts not op 

RECORD. 

XII. Op impaneling juries op inquest. 



ARTICLE I. 

JURORS IN GENERAL. 

Section 190. Jury defined. 

191. Different kinds of juries. 

192. Grand Jury defined. 

193. Trial jury defined. 

194. Number of u trial jury. 

195. Jurj'^ of inquest defined. 

Jury • 190. A jury is a bodA- of men temporarily selected 

ddtinod. , , ~ . . 

from the citizens of a particular district, and invested 
with power to present or indict a person for a^ public 
offense, or to try a question of fact. 

Different 191. Jurfcs are of three kiuds: 

kinds of 

juries. 1. Grand juries; 

2. Trial juries; 

3. Juries of inquest. 

V 

Grand A' 192. A Grand Jury is a body of men, not less than 

dejined. ^ thirteen nor more than fifteen in number, returned at 

V stated periods from citizens of the county, before a 

g Court of competent jurisdiction, and sworn to inquire 

^ of public oft'enses committed or triable within the 

XjT^ county. 

^ Note.— Stats. 1863, p. 630. 

Trial jury Jj 193. A trial jury is a body of men returned from 
the citizens of a particular district, before a Court or 




1 

a 



Code of Civil Procedure. 125 

oJficer of competent jurisdiction, and sworn to try and 
determine, bj a unanimous verdict, a question of fact. 

194. A trial lury consists of twelve men, unless Number of 

y . ' m . . a trial jury. 

the parties to the action or proceeding agree upon a 
le38 number. 

Note. — A party failing to appear at the trial, it 
operated as a consont on his part that the issue should 
be tried by the Court without a jury. The other party 
could have made thi^ consent mutual by submitting 
the case to the Ck>urt; but if such a course is not taken, 
and the party appearing calls for a jury, he is bound to 
take the number required by law. Twelve is the num- 
ber, and a less number will not constitute a legal jury 
without the consent of the adverse party. Such con- 
sent must be express, and entered at the time in the 
minutes of the Court; it cannot be inferred from the 
mere absence of the adverse party. — Gillespie vs. Ben- 
eon, 18 Cal., p. 411. 

195. A jury of inquest is a body of men, sum- Jury of 
moned from the citizens of a particular district, before dotinod. 
the Sheriff, Coroner, or other ministerial officer, to 
inquire of particular facts. 



ARTICLE II. 

QUALIFICATIONS AND EXEMPTIONS OF JTTRORS. 

Sectiok 196. Who are competent to act as jurors. 

199. Who are not competent to act as jurors. 

200. Who are exempt. 

201. Who may be excused. 



198. A person is competent to act as a juror if he whoaro > 

,  competent y 

be: to act as >^^^ 

jurors. ^^^^^^^ 

1. A citizen of the United States, an elector of the S 
county, and a resident of the township at least three '^ 
months before being selected and returned; r- 

2. In possession of his natural faculties and not C* 
decrepit; ^S**^ 

3. Possessed of sufficient knowledge of the Ian- -^ 
guage in which the proceedings of the Coui^ts are had; ,^ 



\» 



126 CoDB OF Civil Procedure. 

4. Assessed on the last assessment roll of his county, 
on property belonging to him. 

Note.— Stats. 1863, p. 630; 1864, p. 462; 3 Cal., p. 
107; 4 Cal., p. 175; 6 Cal., p. 4^5; 17 Cal., p. 320. 

Subd. 1. — "An elector of the countt," etc.— 
Sampson vs. Schaffer, 3 Cal., p. 107. **And a bkbi- 
dent.'" — Residence depends upon intention, as well as 
fact, and mere inhabitancy for a short period, against 
the intention of acquiring a domicile, would not make 
a resident within the meaning of th§ law. — People vs. 
Peralta, 4 C-al., p. 175. A citizen of the State who has 
resided only fourteen days in a county, and then was 
absent several months from the State, with the intention 
of returning to that county as his home, and does 
return, and has resided fourteen days in the county 
since his return, is qualified to act as a juror, so far as 
residence is concerned. If he had resided but one day, 
with the intention, in good faith, of making the county 
his home, and then left, with the intention of returning 
(animus revertendi), and actually did return, his resi- 
dence would have dated from the day of his first settle- 
ment or arrival in the county, and not from the dat« of 
his return. — People vs. Stonecifer, 6 Cal., p. 410. On 
a motion for a new trial, plaintiff*s attorney (the client 
being absent) made afiSidavit that since the (rial he had 
discovered that M., one of the jurors, was incom- 
petent, because a resident of the State only three 
months. H. also makes afiidavit that he was a resi- 
dent of the State for that time only. Held,' that M. 
. was a competent juror. — Thompson vs. Paige, 16 Cal., 

p. 78. In a criminal case, the objection that one of the 
jurors was an alien, cannot be taken for the first time 
upon the motion for a new trial, not even if the defend- 
ant was not aware of the juror's alienage at the time 
of the verdict. The defendant might have examined 
the juror on this sul^ect and exercised the right of chal- 
•^ lenge before the juror was sworn. — People vs. Chung 

Git, 17 Cal., p. 322. See, also, People vs. Stonecifer, 
6 Cal., p. 405. 

Suibd. 2. — The words " and not decrepit " are added 
to the law as it existed prior to the passage of this 
Code. Want of hearing, or of si^ht, sufiTering from 
t physical disease, which prevents him from giving at- 

tention to the proceedings of the Court, are enough to 
render a juror disqualified. — Montague's Case, 10 Grat- 
tan, p. 767; People vs. Arceo, 32 Cal., p. 45. 

JSubdn 3. — See the case of People vs. Arceo, 32 Cal.| 
p. 40. 



r 



I 




Code of Civil Procedure. 127 

Subd. 4. — A person otherwise qualified is not a com- 
p^nt juror unless he has been assessed on the last 
assessment roll of his county, on property belonging to 
him. — People vs. Thompson, 34 Cal., p. 672. 

199. A person is not competent to act as a juror: whoRr« 

1. "Who does not possess the qualitications pre- compAtont 

^ * * to ace as 

scribed by the preceding section; * . '^'*'*^"* 

2. Who has been convicted of a felony or misde- 
meanor, involving moral turpitude. 

Note.— Stats. 1863, p. 630. 

200. A person is exempt from liability to act as who are 

^ ^ *' oxempt. 

a juror if he be : 

1. A judicial, civil, or military officer of the United 
States, or of the State of California; 

2. A person holding a county office; 

3. An attorney and counselor at law; 

4. A minister of the gospel or a priest of any de- 
nomination; 

5. A teacher in a college, academy, or school; 

6. A practicing physician; 

7. An officer, keeper, or attendant of an almshouse, 
hospital, asylum, or other charitable institution; 

8. Engaged in the performance of duty as officer or * 
attendant of a County Jail or the State Prison; 

9. Employed on board of a vessel navigating the 
waters of this* State; 

10. An express agent, mail carrier, telegraph opera- 
tor, or keeper of a public ferry or toll gate; 

11. An active member of the fire department of any 
city, town, or village in this State, or an exempt mem- 
ber by reason of five years active service; 

li A superintendent, engineer, or conductor on a 
lailroad. 

Note.— Stats. 1863, p. 630 ; 1853, p, 59 j 1866, p. 30 ; 
1862, p. 362. Subdivision 12 is new. 

201. A jm'or cannot be excused by the Court for who may 
enght or trivial cause, or for hardship, or inconveni- 



128 Code of Civil Procedure. 

ence to his business, but only when material injury or 
destruction to his property, or that of the public 
intrusted to him, is threatened, or when his own 
health, or the sickness or death of a member of his 
femily, requires his absence. 

Note .—Stats. 1863, p. 630. It has been held that 
the Court may, for a good reason, on its own motion, 
excuse or set aside a juror who is free from any statu- 
tory dinability, SLud possesses the legal qualiBcations 
of a juror. — Montague's Case, 10 Grattan, p. 767. And 
** even if a juror has been set aside by the Court for an 
insufficient cause, it is not a matter of error, if the 
trial has been by a jury duly sworn and impaneled and 
above all exceptions. Neither the prisoner nor the 
Government in such a case have suffered injury."— 
United States vs. Cornell, 2 Mason, p. 91; Tatune va. 
Young, I Port., p. 298; Commonwealth vs. Hayden, 4 
Gray, p. 19. Where a Court willfully and arbitrarily 
rejects a juror not disqualified under the provision of 
the statute, and without any reasonable g^und upon 
which to base its actions, perhaps it might be error. — 
See People vs. Arceo, 32 Cal., p. 40, 



ARTICLE III. 

MANNER OF SELECTING AND RETURNING JURORS FOR COURTS OF 

RECORD. 

Section 204. List of persons to serve as jurors to be made by Super- 
visors. 

205. How selection shall be made. 

206. List to contain one name for every hundred inhabitants. 

207. Person who serv^ed as juror during preceding year not 

to be selected. 

208. List to be placed with Clerk. 

209. Duty of Clerk on receiving lists. 
JK 210. Regular jurors to serve one year. 

r 
I^ \^" Listof 204. The Board of Supervisors of each county 

u ^ BorvQ as must, at their first regular meeting in each year, or at 

made by any othcr meetinff if neglected at the first, make a 

Suporvisors •' o o y 

list of persons to serve as juroi's in Courts of record 
for the ensuing year. 




CoDB OP Civil Procbdurb. 



129' 



205* They must proceed to select and list from 
those assessed on the assessment roll of the previous 
year, suitable persons, competent to serve as jurors; 
and in making such selection, they must take the 
names of such only as are not exempt from serving, 
who are in possession of their natural faculties, and 
not infirm or decrepit, of fair character, of approved 
integrity, and of sound judgment. 

206. Such lists must contain not less than one for 
every hundred inhabitants of each township or ward, 
having regard to the population of the county, so that 
the whole number of jurors selected in the county 
shall amount, at least, to one hundred, and not exceed 
one thousand. 



How 
selection 
s.haU be 
made. 



List to ^**^ 
contain one r 
name for ^ 
every --^ ^ 
hundrc 
inhabit 



ft: 



Person who 
served as 
juror 

during pre- 
ceding year 
not to be 
selected. 






207. In making such selection, the Board must 
not select any of the same persons who actually^erved 
as jurors at any term of Court during the preceding 
year; and if such persons are drawn and returned to 
serve as trial jurors, it will be the duty of the Court 
to strike the names of such persons fi'om the list of 
jurors, and direct the SheriflF to fill up the list from 
among the neighboring citizens competent to serve as 
jurors; and in counties having ten thousand or more \ 
inhabitants, it shall be a good cause of challenge that ^ 
any trial juror, whether on the regular panel or taken 
from among the bystanders, has served as a trial juror 
at any time within the year next preceding the mak- 
ing of the list of peraons to serve as jurors as herein- 
before provided. 

208. Certified lists of the persons selected to serve List to be 

, - , . A Plwedwith 

as jurors must at once be placed in the possession of cierk. 
the County Clerk. 

209. On receiving such lists, the Clerk must file Dnty of 
the same in his office, and write down the names con- receiring 

' lists. 

17— Vol. I. 







't 



130 



,y 



Code op Civil PRocBDxmB. 



"^ tained therein on separate pieces of paper, of the same 
^ size and appearance, and fold each piece so as to con- 
V ceal the name thereon, and deposit them in a box to 
be called the "jury box." 



R«8:alar 
joTonto 
serve 
one year. 



210. The persons whose names are so retmned are 
known as regular jurors, and must serve for one year, 
and until other persons are selected tod returned. 



N. ,^* upon the 

V^ 'order of the 
^ 'Judge. 




s^ Clerk to 
\ noUftr 

V County 
Jndfle and 
Sheinff of 
V^ time of 
^ drawing. 




ARTICLE IV. 

TIME AND liANlTEB OF DBAWIKQ JUBOBS FOB G0UBT8 OF BECORD. 

Sectiok 214. Jury to be drawn upon the order of the Judge. 

215. Clerk to notify County Judge and Sheriff of time of 

drawing. 

216. Sheriff and Judge to witness drawing. 

217. Drawing, when to be adjourned. 
^ 218. Shall proceed, when. 

219. Drawing, bow conducted. 

220. After adjournment of Court, disposition to be made of 

ballots. 

221. Copy of list to be fhmisbed by Clerk. 

214. Not less than ten nor more than thirty days 
before the commencement of any term of Court, the 
Judge thereof, if a jury will be required therefor, must 
make and file with the County Clerk an order that one 
be drawn. The number to be drawn must be fixed in 
the order; if to form a Grand Jury, it must be twenty- 
four, and if a trial jury, such number as the Judge 
may direct. 

Note.— A «tt&«tonfta; compliance with the time of 
drawing jurors, as prescribed by this Chapter, ia per- 
haps sufficient.— See People ys. Rodriguez, 10 Cal., p. 
50; People vs. Stuart, 4 Cal., p. 218; ThraU vs. Smiley, 
9 Cal., p. 537; see, also, Dote to Sec. 225, post. 

215. At least one day before the drawing, the 
Clerk must notify the SherijBF and County Judge of the 
time when such drawing will take place, which time 
must not be more than three days after the receipt by 
him of the order for such drawing. 



Code op Civil Procedure. 131 

216. At the time so appointed, the SheriflF, m per- sheriff Md 
eon or by deputy, and the County Judge, must attend Jl^^g^ 
at the County Clerk's office to witness such drawing, 
and if they do so, the Clerk must, in their presence, 
proceed to draw the jurors. 

217. If the officers so notified do not appear, the Drawing, S^^ 

*^ *■ when to be< ~ 

Clerk must adjourn the drawing until the next day, adjourned. > 
and, by written notice, require two electors of the ^ 

county to attend such drawing on the adjourned day. 

218. I^ at the adjourned day, the SheriiF, County Shaiipro- <»^ 
Judge, and electors, or any two of such persons, appear, v;w 
the Clerk must in their presence proceed to draw the 
jurors. 

219. The Clerk must conduct such drawing as Drawing. 

how 
follows: conducted. 

1. He must shake the box containing the names of 
jurors returned to him, from which jurors are required 
to be drawn, so as to mix the slips of paper upon 
which such names were written, as much as possible; 

2. He must then publicly draw out of the box as 
many such slips of paper as are ordered by the Judge; 

3. A minute of the drawing must be kept by one 
of the attending officers, in which must be entered 
the name contained on every slip of paper so drawn, 
before any other slip is drawn; 

4. I^ after drawing the whole number required, the 
name of any person has been drawn who is dead or 
insane, or who has permanently removed from the 
county, to the knowledge of the Clerk or any other 
attending officer, an entry of such fact must be made 
in the minute of the drawing, and the slip of paper 
containing such name must be destroyed; 

5. Another name must then be drawn, in place of 
that contained on the slip of paper so destroyed, which 
musty in like manner, be entered in the minutes of the 
drawing; 




132. Code of Civil Procedure. 

Samo. 6. The same proceediugs must be had as often as 

may be necessary, until the whole number of jurors 
required: are drawn; 

7. The minute of the drawing must then be signed 
by the Clerk and the attending officers or persons, and 
filed in the Clerk's office; 

8. Separate lists of the names of the peraons so 
drawn for trial jurore, and of those drawn for grand 
jurors, with their places of residence, and specifying 
for what Court they were drawn, must be made and 
certified by the Clerk and the attending officers or 
persons, and delivered to the Sherifl: of the county, 

After ad- 220. After the adjournment of any Court at which 
ofcourt, jurors have been returned, as herein provided, the 

disposition •* / J. ' 

of bSaTots* Clerk must inclose the ballots containing the names 
of those who attended and served as jurors in an en- 
velop, under seal, and the ballots of those who did 
not attend and serve must be returaed to the jury 
box. The ballots sealed in envelops must not be re- 
turned to the jury box until all the ballots therein 
have been exhausted. 

Copy of 221. The County Clei'k must furnish any person 

ftiniiflhed applying therefor, and paying the fees allowed by law 

for the same, a copy of the list of jurors drawn to 

attend any Couil;. 



•v 



AETICLK V. 

, MANNER OF SUMMONING JURORS FOR COURTS OF RECORD. 

Section 225. Sheriff to summon jurors, how. 

226. Court may order jury drawn, when. 

227. "When jury may be completed from the body of tV.Q 

county. 

Sheriff to 225. As soou as he receives the list of jurors 

summon 

Jurors, drawn, the Sheriff luust summon the persons named 
therein to attend, by giving personal notice to each^ 
or by leaving a written notice at his place of rasi*- 



Code op Civil Procedure. 133 

dence, with some person of proiT^er age, and must re- 
tarn the list to the Court at the opening tliereof, 
specifying the names of those who were sunimoned 
and the manner in which each person was notified. 

Note. — The alleged disqualification of one of the 
jurors consists in the fact that his name was not on the 
venire returned by the Sheriff. It appears, however, 
that he had been summoned at the commencement Qf the 
term, and. that his name was entered on the minutes, 
and placed in the box, and drawn for the trial, in the 
Fame manner as the other jui^ors 'we^e drawn. The 
olyeolion, if it had any validity, should have been 
urged at the trial; it comes too late after verdict. 
The object of the law is to secure honest and intelli- 
gent men fo" the tnal, and it is of no practical conse- 
quence in what oi^er or at what time duiing the term 
they are sunimoned. It would be productive of great 
haidship to permit a necond trial upon a ground so 
technical and unsubiitantial. Unless the irregularity 
complained of in the formation of the jury goes to the 
merits of the trial, or leads to the inference of improper 
influence upon their conduct, their verdict should not 
be disturbed. — King vs. Hart, 4 Barn. & Aid., p. 430; 
United States vs. Gilbert, 2 Sum., p. 19; People vs. 
Ransom, 7 Wend., p. 417;^ Ambush vs. Hadley, 4 
Pick., p. 38; Commonwealth vs. Norfolk, 5 Mass., p. 
435. In Page vs. Inhabitants of Dnnvers, 7 Mete., p. 
327, it was objected that cert.ain of the jurors who sat 
in the case were not selected in conformity with law, 
and were not qualified to act, and that this fact the 
parties had for the first time learned since the trial and 
decision; but the Court, per Shaw, C. J., said: *'If 
there was any irregularity in the manner of selecting 
the jury, and if this would have been good ground of 
exception, if seaifonably taken, still it came too late, 
after proceeding to trial. The ground is not that the 
jurors were interested or pnyudiced, or otherwise per- 
sonally improper, but that there was a mere irregular- 
ity, not apparently affecting the merits. Such an 
objection, if available at all, must be seasonably taken. 
This results from strong considerations of policy and 
expediency, rendering it an imperative rule of prac- 
tice. — Thrall vs. Smiley, 9 Cal., p. 537. 

226. Whenever jurors are not drawn and sum- Court may 

order j ory 

moned to attend any Court of record, or a sufficient drawn. 

•^ ' when. 

numher of jurors fail to appear, such Court may, in 




r 



Code op Civil Procedure. 

its discretion, order a sufficient number to be forth- 
with dmwn and summoned to attend such Court; or 
it may, by an order entered on its minutes, direct the 
Sheriff of the county forthwith to summon so many 
good and lawful men of his county to serve as jurors 
as the case may require. And in either case such 
jurors must be summoned in the manner provided by 
th^ preceding section. 



Whenjory 227. When there are not competent iurorsenouo:h 

maybe 1 J o 

fromthe*^ present to form a panel, the Court may direct the 
co^tyf *^* Sheriff or other proper officer to summon a sufficient 
number of persons, having the qualification of jurora, 
to complete the panel, from the body of the county and 
not from the bystanders, and the Sheriff must summon 
the number so ordered, accordingly, and return the 
names to the Court. 

Note. — See notes to Sees. 214 and 225, ante. 



Us.<3J^^ /r?^'^- 



ARTICLE VI. 

HAKKEB OF BTJMMONINO JURORS FOR COURTS NOT OF RECORD. 

Section 230. Jurors for Police and Justices' Courts, by whom sum- 
moned. 

231. How summoned. 

232. Officer's return. 



Jurors for 230. When jurors are required in any Police or 
Justices' Justice's Court, they must, upon the order of the Jud^ce 

Courts, by ' J > r o 

monei"™" ^^ Justicc thereof* be summoned by the Sherift*, Mar- 
shal, Policeman, or Constable of the jurisdiction. 



How sum- 
moned. 



231. Such juroi*s must be summoned from the 
persons resident of the city or township, competent to 
serve as jurors, by notifying them orally that they are 
so summoned, and of the time and place at which their 
attendance is required. 



CoDB OP Civil Pkocbdurb. 136 



• 



232. The officer summonine: such iurors must, at Officer's 

^ •' ' return. 

the time fixed in the order for their p.ppearance, return 
it, with a list of the persons summoned indorsed 
thereon. 



ARTICLE VII. 

MAKKICB or STJMMONINa JUBIES OF INQUEST. 

Section 235. How summoned. 

235. Juries of inquest must be summoned by the Howrom- 

* " moned. 

ofiicer before whom the proceedings are had, or any 
Sheriif, Policeman, or Constable, from the persons res- 
ident of the county competent to serve as jurors, by 
notifying them orally that they are so summoned, and 
of the time and place at which their attendance is 
required. 



ARTICLE VIII. 

OBEDIENCK TO SUMMONS, HOW ENFORCED. 

Section 238. Obedience to summons, how enforced. 

238. Any juror summoned who willfully, and with- obedience 
out reasonable excuse, fails to attend, may be attached »nop8. ^^"^ 

' ' •/ enforced. 

and compelled to attend, and the Court may also im- 
pose a fine not exceedihg one hundred dollars, upon 
which execution may issue. If the juror was not per- 
sonally served, the fine must not be imposed until, 
upon an order to show^ause, an opportunity has been 
offered the juror to be heard. 

Note.— Stats. 1863, p. 630. 



AKTICLE IX. 
of imfaneuno a grand jurt. 



I 



SiCTioK 241. Grand Jury, when to be impaneled. 
342. Grand Jury, how constituted. 
243. Jury to be impaneled as prescribed in Penal Code. 




136 Code of Civil Procedure. 

Grand 241. At the openinff of each reffulap term of the 

Jury, when i O e> 

impaneled. ^^^^^7 Court (uuless otherwiBe directed by the Judge), 
and as often thereafter as to the Judge may seem proper, 
a Grand Jury may be impaneled. 

K* Grand^ 242. When, of the lurors summoned, not less than 

VO Jury, how ' "^ ' 

rv conaututed thirteen nor more than fifteen attend, they shall con- 
'^ stitute the Grand Jury. If more than fifteen attend, 

the Clerk must call over the list summoned, and the 

fifteen first answering shall constitute the Grand Jury. 

If less than thirteen attend, the panel may be filled to 

fifteen as provided in Section 226. 

Jury to be 243. Thereafter such proceedings shall be had in 

impaneled , -i i • r* 

"nbedin iiiipaneling the Grand Juiy as are prescribed m Fart 
pliaj Code n of The Tenal Code. 



ABTICLE X. 

OF IMPANELING TRIAL JURY IN COURTS OV RECORD. 

Section 246. Clerjc to call list of jurors summoned, etc. 

247. Jury to |^ impaneled as prescribed in Part II. 

Gierkto 246. At the opening of Court, on the day trial 

call list of 1 

jurors sum- lUTors have bccu summoned to appear, the Clerk must 

xnoned, etc. ** x x ? 

call the names of those summoned, and the Court may 
then hear the excuses of jurors summoned. The Clerk 
must then write the names of the jurors present and 
not excused, upon separate slips or ballots of paper, 
and fold such slips so that the names are concealed, 
and then, in the presence of the Court, deposit the 
slips or ballots in a box, which must be kept sealed 
until ordered by the Court to be opened. 

Jury to be 247. When thereafter an action is called for trial 

impaneled 

«wpj|^. by the Court, such proceedings shall be had in impan- 
PartiL eling the trial jury as are prescribed in Part II of this 
Code. 



Cobb of Civil Proobdurb. 137 

ARTICLE XI. 

OV IMPAK£LINO A TBIAL JUKY IN COURTS NOT OF BECORD. 

QmcnoTX 250. Proceedings in forming jury in Courts not of record. 
251. How impaneled. 

250. At the time appointed for a jury trial, in Proceed- 
Folice or Justiccfl' Courts, tlie list of jurors summoned JS™ jj* 
must be called, and the names of those attending must of If^rd.* 
be written upon sepamte slij^s of paper, folded so as to 
conceal the names, and placed in a box, from which 

the trial jury must be drawn. 

251. Thereafter, if the action is a criminal one, Pow 

^ ' impaneled. 

the jury must be impaneled as provided in The Penal 
Code. If a civil one, as provided in Paii; II of this 
Code. 



ARTICLE XII. 

OF IMPANELING JURIES OF INQUEST. 

Sectiost 254. Mode and manner of impaneling. 

254. Tlie mode and manner of impaneliiiff juries M'odoand 

\ *^ " mannorof 

of inquest are provided for in the provisions of the dif- i-'iranei- 



fereut Codes relating to such inquests. 

Note. — The Commissioners reported the preceding 
Chapter as a substitute for the then existing statutes 
on the same subject. Wo had a ]iiTy law applicable to 
thirty-three counties; another, entirely different in its 
' provisions, applicable to sixteen counties; and still 
another, differing from both, applicable to San Fran- 
i ci«;co alone (Stats. 1861, p. 573; 1803, p. 030; 1804, p. 

524); and various statutes of local application. 



lUg. 



CHArTER IL 

OF COURT COMMISSIONERS. 



Section 258. Court Commissioners, how appointed. 
259. Powers of Court Commissioners. 

18— Vol. I. 



188 CoDB OP Civil Procbdueb. 

Oqartcom-* 258. The District Courts may appoint, for each 
appointed. ^^^^^^7 ^^ their respective districts, a Commissioner, 
to be designated as "Court Commissioner" of the 
county. If portions of a single county are assigned 
to diflFerent districts, then a Commissioner may be 
appointed to reside in each portion of the county thus 
assigned. 

Note.— stats. 1863, p. 888; 1864, p. 229. 

P^wowof ^ 259. Every such Commissioner has power: 
missionen. 1, Xo hear and determine ex parte motions for orders 
and writs (except orders or writs of injunction) in the 
District and County Couits of the county for which he 
is appointed; 

2. To take proof and repoi-t his conclusions thereon, 
as to any matter of fact (other than an issue of fact 
raised in the pleadings), upon which information is 
required by the Court; but any party to the proceed- 
ings may except to such report within four days after 
written notice that the same has been filed, and may 
argue his exceptions before the Court, on giving notice 
of motion for that purpose; 

3. To take and approve bonds and undertakings 
whenever the same may be required in actions or pro- 
ceedings in such District and County Courts, and to 
examine the sureties thereon when an exception has 
been taken to their sufficiency, and to administer oaths 
and affimaations, and take affidavits and depositions in 
ahy action or proceeding in any of the Coims of this 
State, or in any matter or proceeding whatever. 

Note.— Stats. iSas, p. 338; 1864, p. 229. 

Subd. 1. — " Except orders, or writs of injunction," 
the Court Commissioner has no jurisdiction to hear • 
motions relative to the dii^solution of an injunction. — 
Stone vs. Bunker Hill M. Co., 28 Cal., p. 497. Whether 
an appeal may betaken from an order of a Court Com- 
missioner dissolving an injunction, without first apply- 
ing to the District Court to correct the error, was a 
question stated by the Court but not decided. — Id. It 
was held, that under the Practice Act, Section 195, as 



Code of Civil Procedure. 139 

it exist ei before the Code (compare Sec. 661, of this 
Code), that the Court Commissioner was authorized to 
extend the time for filing statement on motion for new 
trial, twenty days, in addition to the five or ten days 
given by statute. 

C0MMI88IONEK8 IN Equity were purposely omitted 
by the Legislature. 



TITLE IV. 

OF THE MINISTEKIAL OFFICERS OF THE COURTS OF 

JUSTICE. 

Chapter |I. Of ministerial officers generally, 

II. Of the Secretary and Bailiff of the 

Supreme Court, 
in. Of Phonographic Reporters, 



CHAPTER I. 

OF MINISTERIAL OFFICERS GENERALLY. 
Section 262. Election, i)owers and duties, where prescribed. 



y 



262. The modes of election, powers and duties of Election, 

powers and 

the Attorney General, Clerk of the Supreme Court, duties, 

•^ ' i ' whore 

Reporter of the Supreme Court, Clerks, Sheriffs, and prescribed. ^,^ 
Coroners, are prescribed in The Political and Pexal 
Codes. t 

Note. — For duties of Attorney General, See Pol. 
Code, Sec. 470; Clerk of Supreme Court, see Pol. Code, 
Sec. 750; Reporter of Supreme Court, see Pol. Code, 
Sec. 771; Clerks, see Pol. Code, Sees. 4204, 4205; and 
Sheriffs, see Pol. Code, Sec. 4176, Penal Code, Sec. 1216 
et seq., and 1601 et seq.; Coroners, see Pol. Code, Sees. 
4285-4290, inclusive, Penal Code, Sec. 1510. 



140 Code of Civil Procedube, 

• CHArTER n. 

OF THE SECRETARY AND BAILIFF OF THE SUPREME COURT. 

SfiCTiOK 265. Justices may Appoint. 
260. Tenure and duties. 



Jufiticos 265. The Justieea of tlie Supreme Court may ap- 

appoint point a Secretary and BaHifF. 



lenuroand 268. The Secretary and BailiiF hold their offices 
at the pleasure of the Ju8tices, and must perform such 
duties as may be required of them by the Court or 
any Justice thereof. 



CHAPTER m. 

OF PHONOGRAPHIC REPORTERS. 

Section 269. How appointed, and duty. 

270. Report prima facie correct. 

271. Compensation. 



^(^ 



How. 269. The Jud<2:e of each Judicial District, and 

appoiRtod, ^ 

and duty, each County Judge, may appoint a competent short- 
hand Reporter, to hold office during the pleasure of 
the Judge, and who must, at the request of either 
party, or in the discretion of the Court, in a civil 
2^ action or proceeding, or criminal action or proceeding, 

^ on the order of the Court, the District Attorney, or 

\ the counsel for tlie defendant, take down in shorthand 

V, all the testimony, the rulings of the Court, the excep- 

tions taken, and oral instructions given, and must, 
within five days, or such reasonable time after the trial 
of such case as the Court may designate, write out the 
., same in plain, legible, longhand writing, verify and 

N^ file it, together with the original shorthand writing, 

with the Clerk of the Court in which the case was 
tiied. The Reporter of the County Court of the City 






Code of Civil Procedure. 



141 




and County of San Francisco is ex officio Reporter of 
the Probate and Municipal Crimiilal Court of such 
city and county. 

Note.— Stats. 1866, p. 232. See Stats. 1871-2, p. 400, 
"An Act providing for the appointment of a Reporter 
in the First Judicial District of this State," approved 
March 16, 1872. 

270. His report, written^ out in longhand writing, Report , 
is prima fecie a correct statement of the evidence and c^Tect 
proceedings. 

Note.— Stats. 1866, p. 232. 

271. He shall receive, as compensation for his Compon- 
services, not exceeding ten dollars per day for taking 
notes, and not exceeding twenty cents per folio for 
transcription, to be paid by the party in whose favor 
judgment is rendered, and be taxed up by the Clerk 

of the Court as costs against the party against whom 
judgment is rendered. Ii> case of failure of a jury 
to agree, the plaintiff must pay the Keporter's fees 
accrued to that time. In cases where a transcript may 
be required by the Court., the expense thereof must 
be paid equally by the respective parties to the actioi% 
or either of them, in the discretion of the Court; and 
no verdict or judgment can be entered up, except the 
Ck)urt shall otherwise order, until the Reporter's fees 
are paid, or a sum equivalent thereto deposited with 
the Clerk of the Court. In no case shall the transcript 
be paid for unless specially ordered by either plaintiff* 
or defendant, or by the Court; nor shall the Reporter 
be required, in any civil case, to transcribe his notes 
until the compensation per folio therefor be tendered 
to him or deposited in Court for that purpose. In 
criminal cases, when the testimony has been taken 
down by order of the Court, the compensation of the 
Beportar must be fixed by the Court and paid out of 
tjie Treasmy of the county in which the case is tried, 
upon the order of the Court. 

Note,— Statg. 1868, p. 465. 



'^. 



\ 





^ 



142 CoDB OP Civil Procedure. 



TITLE Y. 

OF PERSONS SPECIALLY INVESTED WITH MINISTE- 
RIAL POWERS RELATING TO COURTS OF JUSTICE. 



^ 



Chapter I. Attorneys and counselors at law. 

n. Of other persons invested with such 
powers. 



CHAPTER I. 

ATTORNErS AND COUNSELORS AT LAW. 

Section 275. Who may be admitted as attorneys. 

276. Qualifications. 

277. Certificate of admission. License. 
^ 278. Oath. 

279. Attorneys of other States. 

280. Roll of attorneys. 

<*, 281. Penalty for practicing without license. 

^ 282. General duties. 

.^'^ 283i Authority of attorney. 

- t 284. Change of attorney. 

285. Notice of change. 

286. Death or removal of attorney. 

287. Removal and suspension. 

288. Conviction of felony. Moral turpitude, 
t ^^* Proceedings for removal or suspension. 

290. Accusation. 

291. Verification, 
t 292. Citation to answer. 

293. Appearance. 

294. How to answer. 

295. Demurrer. 
• 296. Answer. 

297. Trial. 

296. Reference. 
299. Judgment. 

Who may 275. Any white male citizen, or white male per- 

06 admit- 

attoraeys. ^^^' resident of this State, who has bona fide declared 
his intention to become a citizen in the manner re- 
quired by law, of the age of twenty-one years, of good 



Zf~ 



Code of Civil Procedure. 148 

moral character, and who possesses the necessary quali- 
fications of learning and ability, is entitled to admis- 
sion as attorney and counselor in all Courts of this 
State. 

Note. — Stats. 1851 , p. 48. An attorney at law is not a 
])er6on holding an office of public trust, within the pro- 
hibitory clause of Sec. 3, Art. II, of the Constitution. 
The right to practice law is a statutory privilege, sub- 
ject to the control of the Legislature. The right to 
practice law is not "property,** nor a "contract," 
within the meaning of the Constitution. The State 
may exclude from its Courts those who are disloyal 
to the Federal as well as to the State Government. 
An oath may be required by the Legislature of the 
State from an attorney purging himself of certain im- 
puted crimes. — See Cohen vs. Wright, 22 Cal., p. 298; 
Ex Parte Gregory Yale, 24 Cal., p. 241. 

I 276. Every applicant for admission as attorney Qnaiiiica- 
and counselor must produce satis&ctory testimonials 
of good moral character, and undergo a strict exam- 
ination, in open Ck)urt, as to his qualifications, by the ^ s^ 
Justices of the Supreme Court. 

Note. — See note to preceding section. 

277. I^ upon examination, he is found qualified, Certificate 
the Court must -admit him as attorney and counselor «»<>»• 
in all the Courts of this State, and shall direct an onder 
to be entered to that effect upon its records, and that 
a certificate of such record be given to him by the Lioensei 
Clerk of the Court, which certificate is his license. 

KoTX.— ^ec. 4, of statute of 1861, p. 40, was as fol- 
lows: 

''Ssc. 4. The District and County Courts of this 
State are authorized to admit, as attorney and coun- 
selor in their respective Courts, any white male citizen, 
or white male person who has bona fide declared his 
intention to become a citizen, of the age of twenty-one 
years, and of good moral character, who possesses the 
requisite qualifications, on similar testimonials and like 
examinations as are required by the preceding section 
for admission by the Supreme Court, and may direct 
their Clerks to give a certificate of such admission, 
which certificate shall be a license to practice in such 
Courts." 



144 Code op Civil Procbdure. 

The intended effect of the omission of this section 
from the Code was to prevent District and County 
Courts from t^dmitting persons as attorneys and coun- 
selors in those Courts. The Supreme Court is alone 
vested with power to admit attorneys and counselors 
to practice in any Courts of this State. 

Oath. 278. Every person, on his admission, must take an 

oath to support the Constitution of the United States 
, and of this State, and to discharge the duties of attor- 
ney and counselor to the best of his knowledge and 
ability. A certificate of such oath must be indorsed 
on the license. 

Note.-— Cohen vs. Wright, 22 Cal., p. 293; Ex Parte 
Gregory Yale, 24 Cal., p. 241. 

Attoraeys 279. E vcrv white male citizen of the United States, 

<^ other •' ' 

>utei. who has been admitted to practice law in the highest! 
Court of a sister State, may be admitted to practice in 
the Courts of this State, upon the pi*oduction of his 
-. license and satisfactory evidence of good moral char- 

acter; but the Court may examine the applicant as to 
his qualifications. 

Note. — In a recent decision the Supreme Court say: 
** An application was mad^ on hehalf of Mr. Snelling, 
he not personally appearing in Court, that he he admit- 
• ted to practice. The application is based upon a license 

showing that he has been admitted to practice in all the 
Courts of the State of Oregon, and satisfactory evidence 
of good moral character. The first rule of the Court 
requires that the applicant mii^t personally appear in 
Court at the time the motion for his admission is made. 
We are urged to depart from the requirements of the 
rule in this instance, because of a personal injury sus- 
tained by the applicant, which temporarily prevents 
his personal appearance in Court. Similar applica- 
tions made heretofore have been denied. The statute 
concerning attorneys and counselors at law, in further- 
ance of which the rule in question was made, regulates 
with great strictness the method in which attorneys are 
to be admitted. Satisfactory testimonials of good moral 
character are in all cases required, and in general a 
strict examination as to professional qualifications is 
exacted. It is made the absolute duty of the Court to 
make this examination in all cases in which the appli- 




Code op Civil Procedurb. 145 

cant hag not been admitted in the Courts of a sister 
State, or of the Supreme Court of the United States, or 
in that of the District of Columbia. But even in case 
the applicant has been admitted in those Courts, the 
statute has provided that the Court may examine him 
as to his qualifications. It becomes, therefore, the duty 
of the Court to determine, even in a case where the 
application for admission is based upon a license from 
one of the enumerated Courts, whether or not the appli- 
cant shall be first examined in open Court. It is obvi- 
ous that without the personal presence of the applicant, 
but little if any opportunity would be afforded for a 
satisfactory determination in this respect; and if in a 
given case we should in our discretion determine that 
an examination of the applicant should first take place, 
such examination could not be proceeded with in his 
absence. We think that this provision of the statute 
fiiiriy imports of itself that the applicant must be per- 
sonally present, and in this view we cannot, of course, 
dispense with the statute, even if we were disposed to 
relax the rule made by ourselves, which we are not. 
Application denied."— Ex Parte Snelling, Sup. Court 
Cal., October Term, 1872. 

280. Each Clerk must keep a roll of attorneys and Rou of 
counselors admitted to practice by the Court of which 

lie is Clerk, which roll must be signed by the person 
admitted before he receives his license. 

281. If any person shall practice law in any Court, Penalty for 

practioinc 

except a Justice's or Police Court, without having JJ^J^JJ 
received a license as attorney and counselor, he is guilty 
of a contempt of Court. 

Note. — Any person may engage in the profession of 
law. The profession is open to all, and it is simply the 
right to prctctice in Court which is not permitted ex- 
cept to those duly qualified. — Woods' Case, 1 Hopkins 
Chan., p. 6; Cohen vs. Wright, 22 Cal., p. 313. 

282. It is the duty of an attorney and counselor: 

1. To support the Constitution and laws of the General 

-^ . , o. , « , . o. duties. 

TTmted States and of this State; 

2. To maintain the respect due to the Courts of jus- 
tice and judicial officers; 

19_VoL. I. 



146 CoDB OF Civil Procbdurb. 

Same. 3. To counsel or maintain such actions, proceedings, 

or defenses only as appear to him legal or just, except 
tiie defense of a person charged with a public offense; 

4. To employ, for the purpose of maintaining the 
causes confided to him, such means only as are con- 
sistent with truth, and never to seek to mislead the 
Judges by an artifice or false statement of fact or law; 

5. To maintain inviolate the confidence, and at every 
peril to himself, to preserve the secrets of his client; 

6. To abstain from all offensive personality, and to 
advance no fact prejudicial to the honor or reputation 
of a party or witness, unless required by the justice of 
the cause with which he is charged; 

7. Not to encourage either the commencement or 
the continuance of an action or proceeding from any- 
motive of passion or interest; 

8. Never to reject, for any consideration personal to 
himself the cause of the defenseless or the oppressed. 

Note.— 1. Dutiss of Attornbtb jlkd Coux- 
SBLORB. — ^The provisions of this section are taken 
substantially from the oath prescribed to advocates by 
the laws of Geneva. Th^ath is as follows: 

" I swear before God, 

** To be fiiithful to the republic and the Canton of 
Geneva; 

*^ Never to depart from the respect due to the tri- 
bunals and authorities; 

" Never to counsel or maintain a cause which does 
not appear to be just or equitable, unless it be the de- 
fense of an accused person; 

"Never to employ knowingly, for the purpose of 
maintaining the causes confided to me, any means con- 
trary to truth, and never to seek to mislead the Judges 
by any artifice or false statement of &ct or law; 

*^ To abstain from all offensive personality, and to 
advance no fistct contrary to the honor or reputation of 
the parties, if it be not indispensable to the cause with 
which I may be charged; 

'^ Not to encourage either the commencement or the 
contanuanoe of a suit from any motive of passion or 
interest; 

** Not to reject, for any considerations personal to 



Code op Civil Procedurb. 147 

myself, the cause of the weak, the stranger, or the op- 
pressed." 

Say the Commissioners of New York: 

" This appears to us to express so justly the general 
duties of lawyers, that wc cannot do better than take 
almost the very terms of it in prescribing their duties. 

** The profession of a lawyer is essential to society. 
Its character and honor are public interests. Not only 
is the advice of lawyers necessary in the more difficult 
tranKactions of private life, but their intervention is 
necessary to represent the suitor, and advocate his 
rights before the Courts. In this position eveiy thing 
H coniidc'd to their integrity. The magnitude of the 
interests placed in their hands — property, character, 
liberty, life — the responsibility which they assume, the 
oonMdence which they receive, all demand and pre- 
suppose the highest qualities and character. No dis- 
honest or di>honorable man can retain the confidence 
of honest and honorable men. The most intimate con- 
nection, in reality, subsists between the character of 
the community and the character of the bar. An un- 
scrupulous bar could not exist in a high-minded com- 
munity; and if anywhere a currupt legal profession is 
to be found, it is found in the midst of a corrupt and 
corrupting people. 

*' The judicial department is recruited from the legal 
profession. Judges mu.-:t be lawyers. This circum- 
stance alone, the mere fact that one of the great 
departments of government, coordinate in power, 
equal in dignity, and the one upon which especially 
the safety of the citizen depends, is, by the law of its 
condition, eligible only out of the ranks of one pro- 
fessiun, is enough to give it preeminence. The integ- 
rity of the Judiciary, more than that of any other class 
of magistrates, is evidence of the soundness of the 
public mind. The character of the Judges, however, 
is the character of the lawyers. Made at the bar, their 
moral characters there *take their complexion. To 
degrade the bar, therefore, leads directly and inevitably 
to the degradation of the bench. 

" There are certain grave errors somewhat current 
respecting the duties of lawyers, which deserve serious 
consideration. We refer particularly to their alleged ' 
indifference to the moral aspects of the causes tliey 
advocate — not that there is anything like the indifference 
which is supposed to exist. On the contrary, persons 
more scrupulously exact never to take part with wrong, 
or seem to do so, cannot be found in any profession. 
But there ia nevertheless an impression widely diffused, 



148 Code of Civil Procedckb. 

not only in the profession but out of it, that a lawyer 
may properly advocate a bad cause. This view of the 
case we here venture briefly to consider. 

"When a lawyer is asked for his opinion upon a 
purely legal question, his duty ends with stating the 
law as it is. In many instances, however, more than 
this is asked. His client seeks his advice respecting 
his future conduct. In such cases, his duty as a moral 
being requires him to advise justice. His position as a 
legal adviser does not exempt him from the moral du- 
ties which bind other men. He has no more right than 
another friend to advise what is unjust or oppressive. 
Undoubtedly the client must judge for himself of the 
moral quality of his own actions, and if he desires no 
more than to know what course the law requires under 
particular circumstances, the adviser's duty ends with 
explaining that. But in practice the client generally 
expects and asks more. He asks advice from a friend 
who knows what his legal rights are, and who probably 
has more of his confidence than any other person. In 
such circumstances, he is bound by moral and should 
be bound by human laws, to throw his influence upon 
the side of integrity. To assent to the bad scheme of 
an uigust client is to become equally guilty with him, 
and the two are as much conspirators to effect as if 
they had originally concocted a plan of iniquity, with 
a view of sharing in the plunder. And when, in ad- 
dition to advice, the client wants an advocate and asks 
for active cooperation, the same laws bind him just as 
strongly to refrain from pursuing an unjust object. 

** It is sometimes said that a lawyer is not at liberty 
to refuse his services to any person, and that when 
once engaged he is at liberty to employ every means 
in his power for his client. Indeed, so eminent a per- 
son as Lord. Brougham is reported to have said, in a 
speech in the British House of Lords, that the advocate 
is bound to forget that there is any other person in the 
world besides his client, and to lose sight of every other 
consideration than of success. Is it possible that this 
can be just ? Should the advocate forget that there is 
a society whose welfare he is bound, by the highest 
sanctions, to promote; that there are other parties 
whose rights are at stake; that there are duties to 
society, to every member of it, as well as to the one 
who retained him ? 

" The doctrine appears to be unsound in theory, and 
most pernicious in practice. It assumes that a man 
has a right to whatever the law can give him, that the law 
is 80 plain that it cannot be mistaken or perverted, and 



Code of Civil Procedure. 149 

that one may rightfully avail himself of every defect 
in an adversary's proof which the rules of evidence, or 
accident, or time may have created — three propositions, 
every one of which is without tbundation . Suppose that 
a clicDt makes claim to land in the possession and appar- 
ent ownership of another, whose evidence of title, how- 
ever, has been destroyed by accident. The advocate 
knows from confidential communications made to him 
as counsel, that his client has not a just claim to the 
land; but, from defect of proof on the part of the ^ 
possessor, it is easy for him to recover it. If the client 
asks it, is he bound to assist him ? Few persons will 
maintain that. But if the doctrine is a sound one, does 
it not embrace this case ? There is, as it strikes us, no 
middle ground. If the advocate is to overlook the 
moral aspects of the claim he must recover this prop- 
erty for his client. Putting so extreme a case tests the 
principle, and shows it to be unsound, by showing that 
it leads to a consequence so revolting. 

"The law, moreover, is not so clear and precise but 
that it may be mistaken or perverted. A strong mind 
at the bar and a weak one on the bench lead often to 
erroneous judgments. The argument we oppose takes 
for granted the infallibility of Judges and the certainty 
of law. Who, conversant with the proceedings of 
Courts, does not know that neither can be counted on? 
Before ordinary tribunals, more depends on the advo- 
cate than is generally imagined. Is it lawful to use the 
power of reason and eloquence to sustain a bad cause, 
to support the guilty, or, what is more revolting, to 
persecute innocence? May the faculties be abused, 
and learning perverted, to make false reasons seem 
true, to cover up weak points, to give undue prominence 
to some facts, to conceal others, to magnify one's own 
cause, to villiiy an advei'sary's? To hold this proceeds 
upon the fallacy that truth and right cannot be' mis- 
represented or concealed. Who does not know the 
contrary? If it be said that it is the duty of an advo- 
cate to go no further than to present the cause of his 
client truly, leaving the results to the Courts and juries, 
it may be answered that truth is absolute, not relative. 
To present a case truly requires the whole truth on 
both sides, as well that which makes against as that 
which makes for a client. If he present the favorable 
circumstances and suppress the unfavorable, does he 
present the case truly? Does he not rather impose a 
false impression on those who have to judge? We by 
no means assert that an advocate may not take upon 
himself the defense of a man whom he believes to be 




160 Code of Civil Procedure. 

guilty. He may. The section we propose permits him 
to do 80. If ho have derived his belief from the con- 
fession of the accused, he hhould pause in assuming his 
defense. The law gives to every man charged with 
crime the benefit of the rule that his innocence is to be 
presumed by his Judges until the prosecution have 
established his guilt by proof beyond reasonable doubt. 
Of this rule the advocate is the intermediate minister. 
Notwithstanding his own conjectures, suimise«, or 
, even belief as to the guilt of his client, he may not be- 

come his judge, but is justified, if not bound, to enforce 
its application to the inconclusiveness of the evidence 
of guilt. He may do this the more readily, because 
even the jury themselves are bound to secure to the 
accused the benefit of it>: application. He may also 
undeitake to show the circumstances of his case, to 
present the palliating circumstances of temptation, or 
of provocation, or an3-thing else that may affect the 
moral quality of the action or detemiine the degree of 
punis-hment. He may also, in civil cases, present de- 
fenses recognized and provided by law, although he 
may himself dit^approve of the principle and policy of 
the law. But here the advocate should stop. The law 
and all its machinery are means, not ends; the purpose 
of their creation is justice; and he who, in his zeal for 
the means, forgets the ends, Iwtrays not only an un- 
sound heart, but an unsound understanding." 

2. Gknkral Bights of Attorkjsy and Client — 
C0UN8KL Fees, etc. — An attorney has a lien for hia 
costs upon a judgment recovered by him, which may 
be enforced upon giving notice to the adverse party not 
to pay the judgment until the amount of the costs be 
paid; and in some cases, where there has been collusion 
between the parties to cheat the attorney, the Court has 
required the client to satisfy them. But this practice 
is confined to some certain and fixed amount allowed, to 
an attorne3' by statute, and is not extended to cases 
where an attorney or counselor claims a quantum 
meruit compensation for his services. In this State we 
have no statute giving costs to attorneys, and they must 
consequently recover for their services in the ordinary 
mode. — Ex Parte Kyle, 1 Cal., p. 331. And as to com- 

• pensation of attorney's, see, further, Mansfield vs. Dor- 

land, 2 Cal., p. 507; Carriere vs. Mintum, 5 Cal., p. 
435. 

3. Retatninq fee in advance.— An attorney is 
entitled to his retaining fee in advance, unless he stipu- 
lates to the contrary. — Covillaud vs. Yale, 3 Cal., p. 
108. In a suit for compensation as attorney in a certain 



# 



CoDB OP Civil Procedure. 151 

proceeding, it i8 not competent to prove the value of the 
attorney's services in another proceeding. A person 
who is not a lawyer is an incompetent witness to prove 
the value of legal services.— Hart vs. Vidal, 6 Cal., p. 
66. How receivers, authorized to appoint and retain 
counsel, and to stipulate that the compensation of such 
counsel shall be left to the discretion of the Court, 
should provide for the payment of such compensation. 
See Adams vs. Wood, 8 Oal., p. 306. In suits by attor- 
neys to recover compensation for legal services, un- 
skillful or negligent conduct or the skill employed in 
the case is an important inquiry. A suit may be won, 
and yet the attorney be guilty of great negligence, etc. 
Bridges vs. Paige, 13 Cal., p. 642. 

NSQLIGENCK OF OB MI8MANAOEMBNT BY AtTOB- 

KIY. — What must be shown to establish negligence on 
part of attorney. — Hastings vs. Halleck, 13 Cal., p. 203. 
Where, through the fault of an attorney, judgment is 
rendered against the client, the latter has a remedy 
against the attorney, but the judgment remains undis- 
turbed unless some fraud or coHusion, etc., on the part 
of th.e attorney is shown. — Sampson vs. Ohleyer, 22 
Cal., p. 210, and cases therein cited. As to bargains by 
an attorney with a client, of advantage to the former, 
protection of the client in such matters. — See Kisling 
vs. Shaw, 33 Cal., p. 425. Por instances of gross mis- 
management by an attorney, see Drais vs. Hogan, Octo- 
ber Term, 1872. 

4. EmPLOYINQ only TBUTHFUL MKAN&— SKEKINa 

TO MiBLKAD JuDOES.~See casc of Fletcher vs. Dain- 
l^erfield, 20 Cal., p. 427. 

5. Must pbksebve the Secbets of his Client. 
"Valentine vs. Stewart, 15 Cal., p. 387; Gallagher vs. 
Williamson, 23 Cal., p. 331; Bislingvs. Shaw, 33 Cal., 
p. 425; People vs. Atkinson, 40 Cal., p. 284. What 
are not privileged communications. — Hager vs. Shind- 
ler, 29 Cal., p. 47; Satterlee vs. Bliss, 36 Cal., p. 489. 

6. ESPOITSE THE CAUSE OF THE DeFEN8£L£&&— DE- 
PEND Pebsons accused of Cbime.— It is part of the 
general duty of counsel to render their professional 
services to persons accused of crime who are destitute 
of means, upon the appointment of the Court, when 
not inconsistent with their obligations to others; and 
for compensation they must trust to the possible future 
ability of the parties. Counsel are not considered at 
liberty to r^ect, under circumstances of such charac- 
ter, the cause of the defenseless because no provision 
for their compensation is made by law. — ^Bowe vs. Yuba 
Co., 17 Cal., p. 61. 



152 Code of Civil Procedukb. 

Aathority 283. An attorney and counselor has authority: 

1. To bind his client in any of the steps of an action 
or proceeding, by his agreement filed with the Clerk, 
or entered upon the minutes of the Court, and not 
otherwise; 

2. To receive money claimed by his client in an 
action or proceeding, during the pendency thereof, or 
after judgment, unless a revocation of his authority is 
filed, and upon the payment thereof, and not otherwise, 
to discharge the claim or acknowledge satisfaction of 
the judgment. 

Note.— 1. Extent op Attorney's authoritt.— 
As to the extent of an attorney's authority, and when 
it is presumed. — See Turner vs. Caruthers, 17 Cal., p. 
431; Hayes vs. Shattuck, 21 Cal., p. 51; Bicketson vs. 
Compton, 23 Cal., p. 636; Holmes vs. Rogers, 13 Cal., 
p. 191; Wilson vs. Cleaveland, 30 Cal., p. 192; People 
vs. Mariposa Co., 39 Cal., p. 683. 

2. Attorney in Fact, but not Attorney at 
Law. — An attorney in fact, who is not an attorney at 
law, is not authorized to sign for his principal a com- 
plaint as "plaintiff's attorney." An action so insti- 
tuted is void, as if commenced by an entire stranger 

• without authority.— Dixey vs. Pollock, 8 Cal., p. 570. 

3. Power to Bind Client.— Hart vs. Spaulding, 1 
Cal., p. 213; Holmes vs. Bogers, 13 Cal., p. 191. The 
agreement of an attorney to bind a client in proceed- 
ings at law must be in writing and filed with the Clerk, 
or entered on the minutes. — Smith vs. Pollock, 2 Cal., 
p. 92. An agreement of counsel for a continuance, not 
reduced to writing, will be disregarded by the Court. — 
Pcralta vs. Mariea, 3 Cal., p. 186. An attorney for a 
party in a proceeding to determine conflicting claims 
to town lots cannot, after the Board of Trustees of the 
town have awarded the lot to his client, pass the client's 
right by a stipulation in the case for the entry of a void 
judgment. — Kyan vs. Tomlinson, 31 Cal., p. 11. A client 
cannot dismiss a suit if his attorney of record oppose 
it. — Board of Commissioners vs. Younger, 29 Cal., p. 
147. If a party to a suit dies after judgment, his attor^ 
ney has no power to further act for him, and could not 
even give notice of a new trial. — Judson vs. Love, 36 
Cal., p. 463. 

4. Notice to Attorney is notice to Client. — ^A 
client is charged with notice of all errors or misoonduct 



Code op Civil Procbdurb. 153 

in the course of the trial, etc., which were known to his 
attorney.— Hoogs vs. Morse, 31 Cal., p. 129. Notice 
to an attorney is notice to the client, and he is bound 
thereby. — Bierce vs. Red Bluff Hotel Co., 31 Cal., p. 
160. 

284. The attorney in an action or special proceed- Chang© of 

*' XX attorney. 

ing may be changed at any time before judgment or 
final determination, as follows: 

1. Upon his own consent, filed with the Clerk or 
entered upon the minutes; 

2. Upon the order of the Court or Judge thereof, 
upon the application of the client, P^jf^ QwUt^ • '^ 

^^^ ^^ ' Note. — Authority or Attorney to act — Power 

OF Court to pass upon their authority.— In the .^^ 

case of The Commissioners of the Funded Debt of the •^ 

City of San Jos6 vs. Younger, 29 Cal., p. 147, the T^ 

Commissioners had retained counsel to bring the action. | 

A trial had been had, resulting in favor of the Com- K 

missioners, and a new trial granted. At that stage of ^ 

the case the Commissioners, without substituting another 
attorney of record, and without the knowledge of their 
attorney of record, compromised the action and author- 
ized the attorney of defendant, in writing, to appear 
fi)r them and dismiss the action, which he did; but the 
motion was resisted by the Commissioners' attorney of 
record, upon the ground, among others, that he was 
still the attorney of record of the Commissioners, and 
as such entitled to manage and control the case until 
displaced and another substituted of record. The 
Court, nevertheless, dismissed the action, and the 
Supreme Court reversed the judgment, holding, in 
effect, that where a party retains an attorney to bring 
or defend an action, the attorney has the right to con- 
trol and manage the case until he has been superseded 
\>j another in the manner dictated by the tenth section 
of the statute in relation to attorneys and counselors, 
which provides that an attorney in an action or special 
proceedings may be changed at any time before f nal 
judgment: First— Upon hb consent, filed with the 
Clerk or entered upon the minutes. Second — ^Upon 
the order of the Court, or Judge thereof, on the appli- 
cation of the client. The question there was, whether 
the Court was bound to recognize the attorney of record 
as possessing the right to manage the case, or could at 

20 — ^Voi.. I. 



4* . 



• 



154 Code op Civil Procedurb. 

pleasure ignore him altogether and recognize another 
as having that right. But the question here is, whether 
the Court has the power to inquire as to the retainer of 
the attorney upon the suggestion of the client that he 
has abused the license of the Court and brought the 
action without any authority. Upon such a question 
we have no doubt as to the power. Attorneys are the 
officers of the Court, and answerable to it for the proper 
performance of their professional duties. They appear 
7 and participate in its proceedings only by the license of 

the Court, and if they undertake to appear without 
authority from the party whom they profess to repre- 
sent, the act is an abuse of the license of the Court, 
%-. . - whjgh, upon the application of the supposed client, the 
Court has the power to inquire into and c^e^t sum- 
marily. Otherwise the very fountain of j\^tice niigfit 
become polluted, and a license to stir its waters become 
a license to defile them. An attorney's license is prima 
fiacie evidence of his authority to appear for any person 
whom he professes to represent, but if the supposed 
client denies his authority, the Court may require him 
to produce the evidence of his retainer under the 8Ui>er- 
visory power which it has over its process and the acts 
of its officers, and that, too, in the mode which was 
adopted in this case, as was suggested in Turner vs. 
Caruthers, 17 Cal., p. 431. It has also been held that 
the Court may require an attorney to show special 
authority upon the application of the opposite party, 
when Jtutice requires it, McKieman et al. vs. Patrick 
et al., was an action by McKieman and Anderson as 
the indorsees of two promissory notes. The defend- 
ants held a set-off against HcKiernan, and made a 
motion for an order upon the plaintiffs' attorneys to 
produce their authority for using the name of Ander- 
son, which motion was suppoiied by an affidavit to the 
effect that the notes in suit were the exclusive property 
of McKieman, against whom they held a set-off, that 
Anderson was a myth, or if not, his name had been 
fraudulently used, without authority, for the purpose 
of avoiding the defendants' set-off as a defense to the 
action. The plaintiffs' attorney showed cause, and in- 
formed the Court that they received the notes ftx>m 
McKieman, with instructions to sue as had been done; 
that they had had no communication with Anderson, 
and had no personal knowledge of him, but they under- 
stood that he was a friend and near neighbor of Hc- 
Kiernan in Alabama; that since the motion was made 
they had written to both of the plaintiffs for informa- 
tion, but had received no answers. The Court denied 



Code of Civil Procedure. 155 

the defendants' motion. Subsequently judgment passed 
for the plaintiffs, and the defendants appealed, and spe- 
cified as error the overruling of their motion for a rule 
upon the plaintiffs' attorneys to show by what authority 
they prosecuted the suit in the name of Anderson ; and 
the appellate Court revei*sed the judgment, with in- 
struclions to retry the rule, and if the plaintiffs' attor- 
neys failed to produce satisfactory authority for bring- 
ing the action in the name of Anderson, to dismiss it. — 
4 How., Miss., p. 833; Clarke vs. Willett, 35 Cal., p. ' 

638. Z 

JSubd. 2.— See Downer vs. Norton, 16 Cal., p. 436. J 






Si#> 



chaogo. ^ 



When an attorney is changed, as provided in Notice of 

tlie last section, written notice of the change and of 

tlie substitution of a new attorney, or of the appear- 

sknee of the party in person, must be given to the 

aclvei'se party; until then, he must recognize the for- 

xxxer attorney. 

Note. — 1. Attorneys ov Record. — If attorneys 
are changed in action, and there is no regular substi- 
tution of attorneys, according to the provisions of the 
statute, notices may be served on the attorney of 
record. — Grant vs. White, 6 Cal., p. 55. 

2, Notice ov Substitution or Attorneys. — 
Where at different stages of the suit different attor- 
neys have acted for one of the parties, and no notice of 
substitution appears, service of notice upon the attor- 
ney last acting and recognized by the Court, is suffi- 
cient to bind client. — Roussin vs. Stewart, 33 Cal., p. 
208. 

286. When an attorney dies, or is removed or sus- Death or 

removal of 

pended, or ceases to act as such, a party to an action attorney. 
for whom he was acting as attorney must, before any 
further proceedings are had against him, be required 
by the adverse party, by written notice, to appoint 
arDOther attorney or to appear in person. 

287. An attorney and counselor may be removed Remon 
or suspended by the Supreme Court, and by the Dis- susponsio] 
trict Courts of the State, for either of the following 
causes, arising after his admission to practice: 

1. His conviction of a felony, or misdemeanor in- 




V 



? 



156 



Code of Civil Procedure. 



Same. 



1^ 

I 



•^^1 



volving moral turpitude, in which case the record of 
conviction is conclusive evidence; 

2. Willful disobedience or violation of an order of 
the Couit requiring him to do or forbear an act con- 
nected with or in the course of his profession, and any 
violation of the oath taken by him or of his duties as 
such attorney and counselor; « 

8. Corruptly and without authority appearing as 
attorney for a party to an action or proceeding. 

In all cases where an attorney is removed or sus- 
pended by a District Court he may appeal to the 
Supreme Court, and the judgment or order of the 
District Court is subject, on such appeal, to review, as 
in civil actions. 

Note.— 1. Attokney Entitled to Trial befobe 
HIS NAME 18 stricken FROM THE ROLL. — The name of 
an attorney may be stricken from the roll of attorneys, 
but such act is not to be regarded in the light of a pun- 
ishment for contempti and the attorney is entitled to 
notice of the charf^es preferred against him, and have 
an opportunity afforded him for a defense. An appeal 
lies to the Supreme Court from the judgment of the 
District Court in such matters. — People vs. Turner, 1 
Cal., p. 143. And see, also, where it was held that an 
attorney could not be suspended by the District Court 
if such attorney had been admitted and licensed by the 
Supreme Court. — People vs. Turner, 1 Cal., p. 190. An 
attorney is entitled to a trial before he can be stricken 
from the rolls. — See Fletcher vs. Daingerlield, 20 Cal., 
p. 427. 

2. Exclusion or Disloyal Persons from Prac- 
tice, ETC. — Power of Legislature. — See, also, the 
cases of Cohen vs. Wright, 22 Cal., p. 322, and Ex 
Parte Yale, 24 Cal., p. 241, wherein are discussed the 
rights of the Legislature to exclude disloyal persons 
from the bar; and also to require from all attorneys, 
after their admission, certain test oaths of loyalty to 
the Government, etc. 



, nviction 288. In case of the conviction of an attorney or 
^ ' counselor of a felony, or misdemeanor involving moral 



* 



ral 
pitude. 



turpitude, the Clerk of the Court in which a conviction 
is had must, within thirty days thereafter, transmit to 






CoDK OP Civil Proceduke. 



157 



Procood- 
ings for 
remoTal or 
suspension 



the Supreme Court a certified copy of the record of 
conviction. 

289. ThB^j)roc^eding8 to rem^e or suspend an i 
attorney and counseror, under the nrst subaiviSion of > 
Section 287, must be taken by the Court on the receipt 
of a certified copy of the record of conviction. The 
proceedings under the second subdivision of Section 
287 may be taken by the Court for matters within its 
knowledge, or may be^taken upon the information of 
another. 



290. If the proceedings are upon the information Acoasation 
of another, the accusation must be in writing. 

29 1 . The accusation must state the matters charged, Vorifica 
and be verified by the oath of some person, to the 
effect that the charges therein contained are true. 



tion. 



answer. 



292. After receiving the accusation the Court must, Citation to 
if in its opinion the case require it, make an order re- 
quiring the accused to appear and answer the accusa- 
tion at a specified time in the same or subsequent 
term, and must cause a copy of the order and of the 
accusation to be served upon the accused within a pre- 
scribed time before the day appointed in the order. 



anoe. 



293. The accused must appear at the time ap- Appear- 
pointed in the order, and answer the accusation, unless 
for sufficient cause the Court assign another day for 
that purpose; if he do not appear, the Court may pro- 
ceed and determine the accusation in his absence. 



294. The accused may answer to the accusation How to 
either by objecting to its sufficiency or denying it. 



answer. 



296. If he object to the sufficiency of the accusa- Demurrer, 
tion, the objection must be in writing, but need not be 
in any specific form, it being sufficient if it presents 
intelligibly the grounds of the objection. If he deny 



158 



Code of Civil Procedure. 



Answer. 



the accusation, the denial may be oral and without 
oath, and must be entered upon the minutes. 



296^ If an objflctiop to l^i/WflS^ 
jaJi-f^W^narsi^liS^ acci/sea r 



nenp2/>f the accu- 
musranswer forth- 



sa 
with. 

TriaL 297. If the accused plead guilty, or refuse to answer 

the accusation, the (^ourt must proceed to judgment of 
removal or suspension. If he deny the matters charged, 
the Court must, at such time as it may appoint, pro- 
ceed to try the accusation. 

Reference. 298. The Court may, in its discretion, order a 
reference to a committee to take depositions in the 
matter. 



Jadffment. 



299. IJj:)on conviction, in cases arising under the 
first subdivision of Section 287, the judgment of the 
Court must be that the name of the party be stricken 
from the roll of attorneys and counseloi*s of the Court, 
and he be precluded from practicing as such attorney 
ar counselor in all the Courts of this State; .and, upon 
conviction in cases under the second subdivision of 
Section 287, the judgment of the Court may be accord- 
ing to the gravity of the oflEense charged — deprivation 
of the right to pmctice as attorney or counselor in the 
Courts of this State permanently or for a limited 
period. 



Receivers 

and 

guardians. 



CHAPTER n. 

OF OTHER PERSONS INVESTED WITH SUCH POWERS. 
Section 304. Receivers and guardians. 

304. The alppointment, powers, and duties of re- 
ceivers and guardians are provided for and prescribed 
in Parts 11 and III of this Code. 



PAET II. 



OF CIVIL ACTION'S. 



PART II. 



OF CIVIL ACTIONS. 



TITLE I. 

OF THE FORM OF CIVIL ACTIONS. 

Sicnox 307. One form of civil action only. 

308. Parties to actions, how designated. 

800. Special issues not made by pleadings, how tried. 

307. {§ 1.) There is in this State but one form Onofoito 

^ . ^ . of civil 

of civil actions for the enforcement or protection of aotiononiy. 
private rights and the redress or prevention of 
private wrongs. 

Note. — Probate proceedings are not civil actions 
(Estate of Scott, 15 Cal., p. 220), and they are, there- 
fore, placed under the division (Part III) of this Code 
relating to special proceedings. 

308. (§ 2.) In such action the party complaining Parties to 
is known as the plaintiff, and the adverae party as the how 
defendant. 

309. (§ 3.) A question of fact not put in issue by Special 

, , , issues not 

the pleadings may be tned by a jury, upon an order "JJ^.^^ 
for the trial, stating distinctly and plainly the question now tried! 
of feet to be tried; and such order is the only 
authority necessary for a trial. 

21— Vol. I. 



162 Code of Civil Procedure. 

TITLE 11. 

OF THE TIME OF COMMENCING CIVIL ACTIONS. 

Chapter I. The time of commencing actions in general. 
n. The time of commencing actions for the 

recovery of real property. 
m. The time of commencing actions other than 

for the recovery of real property. 
TV. General provisions as to the time of com- 
mencing actions. 



CHAPTER L 

THE TIME OF COMMENCING ACTIONS IN GENERAL. 
Section 812. Commencement of civil actions. 

Com- ^ 812. Civil actions can only be commenced within 

■leneemQDt 

jjj*^ the periods prescribed in this Title, after the cause of 
action shall have accrued, except where, in special 
•»/ cases, a different limitation is prescribed by statute. 

Note.— Stets. 1850, p. 848. 

1. Statute or Limitations not Retroactive.— 
Statutes of Limitation do not act retrospectively; they 
do not begin to run until they are passed. Thus an 
Act of April 2d, 1855, limiting the time for the com- 
mencement of an action on a foreign judgment to two 
years could not be pleaded in an action brought in 1856 
on a foreign judgment obtained in 1847.— Nelson vs. 
Nelson, 6 Cal., p. 480; see, particularly, Scarborough 
vs. Dugan, 10 Cal., p. 306; also, Billings vs. HaU, 7 
Gal., p. 1; Billings vs. Harvey, 6 Cal., p. 881. 

2. When statute as amended begins to bun.— 
By the State Constitution the amendment of a statute 
operates as an absolute repeal of the section amended 
(Const., Art. IV, Sec. 25.), notwithstanding the 
amendment takes nothing away from the old law, but 
simply reiSnacts the section amended, with the addition 
of K proviso in certain cases. The Act of April, 1856, 
amending Sec. 6 of the Statute of Limitations of 1860, 



Code op Civil Procbduke. 163 

by reenacting the section, with the addition of R proviso 
concerning actions under Spanish or Mexicans titles, 
repeals the section of the law of 1850 in toto. The 
rcenactmcnt creates anew the rule of action, and even 
if there were not the slightest difference in the phrase- 
ology of the two the latter alone can be referred to as 
the law, and the former stands, to all intents, as if 
absolutely and expressly repealed. Thus it would 
follow that the Act of 1855, in this case, would be the 
only Statute of Limitations, and the time fixed therein 
runs only from the date of that Act. — Billings vs. Har- 
vey, 6 Cal., p. 381; see, also, Clarke vs. Huber, 25 
Cal., p. 593. 

3. Vestkd rights— Obligations op contract not 
IMPAIRED. — An amendatory Act to the' Statute of Lim- 
itations does not divest any rights vested under the old 
law, for statutes of limitation afieet the right and not 
the remedy. — See fiillings vs. Hall, 7 Cal., p. 1. But 
it was held that a right without a remedy is practically 
no right at all, and that a statute of limitations can only 
be construed to apply (in thecaseof foreign judgments) 
to judgments not in esse at the time of the passage of 
the Act. — Scarborough vs. Dugan, 10 Cal., p. 305; see, 
however, Civil Code, "Obligation," Sec. 1427. 

4. Fraudulent Concealment.— Statutes of limita- 
tion are passed to prevent the production of State 
claims when, fVom the lapse of time, it has become 
difficult or impossible to furnish the requisite proof to 
defeat them. They proceed upon the theory that the 
delay, for a fixed period, to assert one's claim, raises a 
presumption of settlement, and that a party ought not 
to be afterwards harrassed respecting it. They are not 
intended to protect a party who has, by fraudulent con- 
cealment, delayed the assertion of a right against him 
until after the expiration of the period limited by the 
statute. The question, whether a fraudulent conceal- 
ment of the fact, upon the existence of which the cause 
of action accrues, would avoid the Statute of Limitations 
has frequently arisen, and in its decision there is much 
conflict of opinion. In Courts of equity it is the set- 
tled doctrine that such concealment will prevent the 
operation of the statute, and it is only in the applica- 
tion of the doctrine to suits at law that the diversity 
of opinion exists. — See cases cited and commented 
on; Kane vs. Cook, 8 Cal., p. 449. " In this diversity 
of opinion," say the Court, ** we are free to adopt the 
rule which will best tend to advance justice and pre- 
vent the perpetration of fraud, and we, therefore, hold 
that in all cases a fraudulent concealment of the fact, 



164 Code of Civil Procedure. 

upon the existence of which the cause of action 
accrues, is a good answer to the plea of the Statute of 
Limitations. By the system of practice in this State 
there is no replication to the answer. The fraudulent 
concealment cannot, therefore, be replied to by plead- 
ing, but it may be established by proof on the trial, 
and will then just as effectually avoid the plea of the 
statute."— Kane vs. Cook, 8 Cal., p. 449. 

5. When cause of action Accrues.— The statute 
provides that civil actions shall be commenced within 
certain periods therein presciibed **afler the cause of 
action shall have accrued." The clause "after the 
cause of action shall have accrued,*' does not, in our 
judgment, imply, in addition, the existence of a person 
legally competent to enforce it by suit. If it did, why 
in subsequent parts of the statute provide that the stat- 
ute shall not run in certain cases specified, which are 
excepted from the operation of the statute, because the 
persons in whose favor the cause of action exists are 
legally incompetent to sue? Obviously, if the term 
"right of action" implies the existence of a person 
competent to commence an action, there was no occa- 
sion for special provisions relieving persons not com- 
petent from the operation of the statute. Nothing fur- 
ther need have been said, for the Courts, after having 
ascertained the existence of a right of action, would 
have next inquired whether there was any person in 
existence legally competent to enforce it by suit, and 
computed the time accordingly. Again, if it was the 
intention to provide that the statute should run only 
where there is both a right of action and a person to 
assert it, why not' insert a provision to that effect in 
general terms, and not take the hazard, by going into 
details, of omitting cases which ought, on the score of 
equal equities, to be included? But, again, if we as- 
sume that the term "cause of action'' contains also a 
general implication in relation to disabilities, what, in 
view of the subsequent specification of disabilities, be- 
comes of the settled rule that general words are lim- 
ited by special words subsequently employed, or the 
maxim, expresio unius est exclusio alterius. The 
twenty-fourth section provides an exception, where the 
party entitled to bring an action dies after the cause of 
action has accnied, and before the <'xpiration of the time 
allowed for commencing the action, and also where the 
party against whom an action may be brought dies 
before the expiration of the time allowed, but no pro- 
vision ia Uiadd excepting a ca^o where the party who 
would have been entitled to sue dies before the cause of 



Code op Civil Procedure. 165 

action has accrued. Nor do we perceive any substan- 
tial reaison why any exception should be made. If the 
cause of action does not accrue until after the death of 
the party who would have been entitled to sue, the per- 
sons interested in his estate — ^his creditors, heirs, and 
devisees — have the full time allowed by the statute in 
which to move in the matter to obtain a grant of admin- 
istration and commence an action. Even if we recog- 
nized the doctrine of inherent equity, or implied excep- 
tion, we are unable, independent of the judicial dogma 
that the term "cause of action" also implies a person 
to sue, to perceive that this case falls within the princi- 
ple. It certainly has less equity than the case where 
the cause of action has accrued in the lifetime of the 
party; yet in such a case the statute nms on, according 
to the cases to which we have referred, even though 
tliere may not be forty-eight hours of the limitation 
remaining at the time of his death. The Legislature 
of this titat^ seems to have considered this latter result 
of the English statutes as unreasonable, and has there- 
fore provided, as we have seen, that the time allowed 
to sue shall be extended, if necessary, not to exceed six 
months from his death, thus affording time to obtain a 
grant of administration and sue.— Tynan vs. Walker, 
35 Gal., p. 643. 

6. When Cause or Action Accrues, Trustee 
AND Beneficiary. — Where a person holds land in trust 
for another, and there is an agreement that the trustee 
shall convey it to the beneficiary upon the payment of 
the purchase money, a cause of action does not arise to 
compel the execution of the trust until such money is 
paid to the trustee and the Statute of Limitations does 

^not commence U) run until that time. — Millard vs. 
Hathaway, 27 Cal., p. 120. 

7. Contribution — Action for, when Statute 
BEGINS to run. — In an action for contribution between 
joint obligors, tlie Statute of Limitations does not begin 
to run until after the payment of the debt by the 
plaintiff. — Sherwood vs. Dunbar, 6 Cal., p. 53. 

8. When begins to run against Judgment. — 
The Statute of Limitations commences to run against a 
judgment only from the time of the final entry there- 
of.— Parke vs. Williams, 7 Cal., p. 247. 

9. Action to recover a Reward offered by 
Publication, when Statute begins to run.— In 
an actioi^to recover a reward offered ** for such infor- 
mation as would lead to the arrest and conviction of 
the offender/' the Statute of Limitations could not begin 



166 Code of Civil Proceduke. 

^ to run until after trial and conviction. — Ryer ts. Stock- 

well, 14 Cal., p. 134. 

10. Fraud — Limitation ov an action bo bet 
ASIDE Deed fraudulently obtained from a kok 
COMPOS MENTIS. — The statute does not run against a 
grantor's right to commence an action to set aside a 
deed obtained by fraud from him when he was insane 
until he recovers his reason and discovers what he has 
done. — Crowther vs. Rowlandson, 27 Gal., p. 376. 

11. Fraud.— In cases of fraud, when the Statute of 
Limitations commences to run. — See City of Oakland 
vs. Carpentier, 13 Cal., p. 540. 

12. Actions for relief on ground of Fraud. — 
Statute does not begin to run against time for com- 
mencing action for relief on ground of fraud until the 
discovery of the fraud. — Currey vs. Allen, 34 Cal., p. 
267. 

13. Monthly Salary where term is for One 
Year. — An officer elected for a teim of one year, with 
a monthly salary, the statute docs not commence to 
run against any portion of his salary until the expira- 
tion of his yearly term. — Rosborough vs. Shasta R. C- 
Co., 22 Cal., p. 556. 

14. Bankers' Certificate of Deposit.— It has 
been held that the statute runs against a banker's certifi- 
cate of deposit, payable on demand from the dat« of the. 
same, and no special demand is necessary. — Brumma- 
gim vs. Tallant, 29 Cal., p. 503. In this respect a cer- 
tificate of deposit and a promissory note are tlio 
same. — Id. 

15. When cause of action accrues on Promis- 
sory Note. — Payment of interest on note after the note 
has become due does not prolong time of payment of 
note BO as to affect the Statute of Limitations. A note 
payable six months from dat«, with mterest monthly in 
advance, contained the following clause: *' In case said 

^ interest, or any part thereof, should become due and 

remain unpaid after demand, then the mortgage given 
by me, of even date herewith, to secure the payment of 
this note, may be foreclosed." The mortgage con- 
tained a corresponding provision. Tlie prompt pay- 
ment of the interest on demand did not prolong the 
time for the payment of the note beyond the time speci- 
fied therein; and although the interest was paid until a 
year before the commencement of the action to fore- 
close the mortgage, yet more than four years and six 
months having elapsed since the date of the note; held, 
that the note was barred by the Statute of Limitations. 
Pendleton vs. Rowe, 34 Cal., p. 150. 



CoDB OF Civil Procbdurb. 16T 

16. Pkomissobt Noti— Part Paymekts.— A part 
payment indorsed upon a promissory note, made before 
or after the expiration of the period fixed by Statute of 
Limitations, does not avoid the bar of the statute. — 
Heinlin vs. Castro, 22 Gal., p. 100. 

17. Promissort Note fayabib on failure to 
FAY INTBRBBT, BTC. — ^Upon a note payable six months 
after date, wit& interest payable monthly, and further 
providing that '* in case default be made in any pay- 
ment of interest when the same shall become due, then 
the whole amount of prineipaZ and interest to become 
due and payable immediately upon such defSftult,'' the 
cause of action, within the true meaning of the Statute 
of Limitations, arises at the expiration of the credit 
fixed by the note, and not at the time when default is 
made in the payment o( the interest. — Belloc vs. Davis, 
88 Cal., p. 247. 

18. Promissory Note, with days of grace.— In 
computing the time at which the Statute of Limitations 
commences to run on promissory notes, the day on which 
the note becomes due is excluded in all cases when 
days of grace are allowed. The statute runs fh)m the 
last day of grace, excluding the day on which the note 
&lls due.— Bell vs. Sackett, 88 Cal., p. 409. 

19. Agreement not to sue on a demand.— If a 
party enters into a valid agreement in writing with the 
defendant not to sue upon a particular demand which 
he holds until the happening of a particular event, the' 
running of the statute is suspended until the event 
occars. — Smith vs. Lawrence, 88 Cal., p. 24. 

20. COTENANT OF WARRANTY FOR QUIET ENJOY- 
MENT— EVICTION. — Where a tenant in possession is 
evicted, the statute begins to run at the time of the 
eviction, whether such eviction be actual or construc- 
tive. — McGary vs. Hastings, 39 Cal., p. 860. 

21. No presumption of payment raised BY 
STATUTE. — It was formerly held that statute of lim- 
itation proceeded upon a presumption of previous pay- 
ment, and that the effect of an acknowledgment was to 
rebut this presumption and place the debt upon its 
original footing. This view is now exploded, and the 
statute is universally regarded as one of repose, the 
benefit of which may be relinquished by the party 
interested, but cannot be taken from him without his 
consent. If two or more persons are bound, the same 
protection is afforded to each, and an acknowledgment 
by one is not available against the other, unless he had 
authority to make it. — ^McCarthy vs. White, 21 Cal., 
p. 502. 



1*8 Gk>i>B OP Civil Peocbdurb. 

^22. Action to xntokcb ob establish a Tbubt. — 
Where a trust attached to a legal title acquired throug-h 
a Sheriff's deed, the statute does not begin to run until 
the execution of the deed. — Carrey vs. Allen, 34 Cal., 
p. 257. 

23. Trusts— Trubtbk and Bekeficiabt. — The 
Statute of Limitations does not run against an express 
continuing trust until the trustee places himself in hos- 
tility to the trust,— Schroeder vs. Jahns, 27 Cal., p. 274; 
Miles vs. Thome, 38 Cal., p. 835. As between trustees 
and cestui que trust, in the case of an express trust, 
the Statute of Limitations does not begin to run until 
the trustee repudiates the trust by clear and unequivo- 
cal acts or words, and claims thenceforth to hold the 
estate as his own, not sul^ect to any trust, and such 
repudiation and claim are brought to the knowledge of 
the cestui que trust. — ^Hearst vs. Pujol, Cal. Sup. Ct., 
July Term, 1872; Baker v^. Joseph, 16 Cal., p. 173. 
See, also, Ord vs. De la Guerra, 18 Cal., p. 67. 

24. Tbustkb and Bkneficiaey.— Where a party 
holds the legal title of land as security for money due 
him by one having the equitable estate, he cannot, by 
reason of the Statute of Limitations, be compelled to 
accept the money and execute a conveyance of the 
land after four years from the time the money falls 
due; yet, if he voluntarily receives the money when 
tendered, after that time he is not discharged by the 
statute from executing the conveyance and giving a 
deed to the beneficiary.— Mill ard vs. Hathaway, 27 
Cal., p. 120. 

25. Trustee and Beneficiary.— The statute does 
not run in favor of a trustee as against the beneficiary 
while the beneficiary is in possession of the estate, and 
there is no adverse claim made by the trustee. — Love 
vs. Watkins, 40 Cal., p. 548. 

26. Vendor and Vendee.— The statute does not 
run against a vendee's right to enforce a specific per- 
formance (execution of a deed, etc.) so long as he 
remains in possession with the acquiescence of the 
vendor* — Love vs. Watkins, 40 Cal., p. 548. 

27. Equitable and Legal Actions alike B arrei>. 
The Statute of Limitations is applicable alike to all 
causes of actions, whether in equity or at law. — Boyd 
vs. Blankman, 29 Cal., p. 19. 

.28. Cases excepted from Statute of Limita- 
tions. — It was held ** that statutes of limitation are to 
be strictly construed.*' In Demarest vs. Wynkoop, 
8 Johns., Chap. 146, it was held that the Court 
could make no exception in fkvor of infiftnts where the 



Code or Civil Proceocbe. 



169 



statute had made none. Said Mr. Chancellor Kent 
(pa^ 142): " The doctrine of inherent equity creating 
an exception a#to any disability, where the Statute of 
Limitations creates none, has been long and uniformly 
exploded. Greneral words in the statute must receive 
a general construction; and if there be no express ex- 
ception, the Court can create none.*' It was agreed, 
without contradiction, in Stowell vs. Zouch, Plowd., 
d69 6, 371 C, that the general provision in statute of 
fines would have barred infants, femme coverts, and 
the other persons named in the proviso, equally with 
persons under no disability if they had not been named 
in the exception or saving clause. — So in Dupleix vs. 
De Boven, 2 Vem., p. 540. The Lord Keeper thought 
it very reasonable that the Statute of Limitations should 
not run when the debtor was beyond the sea; but there 
was no saving in the case. He could not resist the plea 
of the statute. — See, also, Beckford vs. "Wade, 17 
Vesey, Jr., p. 87; Buckinghamshire vs. Drury, Wil- 
mot's Opinions, p. 177, Sec. 194; Hall vs. Wyboum, 
2 Salk., p. 420; Aubry vs. Fortescue, 10 Mod., p. 206, 
where it was held that ** though the Courts of justice 
be shut by civil war, so that no original could be sued 
out, yet the Statute of Limitations continued to run.'* — 
T>nan vs. Walker, 35 Cal., p. 640. 

29. M0RTOA0£S^M0BTOAOB BARRED WHEN NOTB 

IB BARRED. — ** Where an action upon a note, secured 
by a mortgage, is barred by the Statute of Limitations, 
the mortgagee has no remedy upon the mortgage; and 
though he can follow distinct remedies upon the note 
or mortgage, the limitation prescribed is, in both 
cases, the same. The Statute of Limitations of this 
State differs essentially from the statutes of James I, 
and from the statutes of limitation in force in most 
of the other States. Those statutes apply in their 
terms only to particular legal remedies, and Courts of 
equity hold themselves not bound by them, except in 
cases of concurrent jurisdiction, but act merely by 
analogy to them. Those statutes, as a general thing, 
also apply, so far as actions upon written contracts not 
of record are concerned, only to actions upon simple 
contracts — that is, contracts not under seal, fixing the 
limitation at six years, and leaving actions upon 
specialities to be met by the* presumption established 
by the rule of the common law, that after a lapse of 
twenty years the claim has been satisfied. In those 
statutes where specialities are mentioned, the limitation 



22 — ^VoL. L 



170 • CoDK OP Civil Procbdurb. 

18 generally fixed at either fifteen or twenty years. The 
case is entirely different in this State. Here the statute 
applies equally to actions at law and to suits in equity. 
It is directed to the subject matter, and not to the form 
of the action, or the forum in which the action is prose- 
cuted. Nor is there any distinction in the limitation 
prescribed between simple contracts in writing and 
specialities. Where a note is secured by mortga|i^e 
upon real property, and subsequently, after the remedy 
on the note is barred by the statute, the mortgaji^r 
executes a second mortgage to a third party, such third 
party can interpose the plea of the Statute of Limitations 
in a suit to foreclose the first mortgage, and thus secure 
priority for his subsequent mortgage; and this, even 
though the mortgagor had, after the execution of the 
second mortgage, and after the note was barred, in- 
dorsed on the first note that he renewed, revived, and 
agreed to pay the same. A mortgagor, after disposing 
of the mortgaged premises by deed of sale, loses all 
control over them. His personal liability thereby be- 
comes separated fh>m the ownership of the land, and 
he can, by no subsequent act, create or revive charges 
upon the premises. He is as to the premises hence- 
forth a mere stranger. And if, instead of selling the 
premises, he execute a second mortgage upon them, 
he is equally without power to destroy or impair the 
efficacy of the lien thus created. As a general rule, 
the plea of the Statute of Limitations is a personal 
privilege of the party, and cannot be set up by a 
stranger. This is true with respect to personal obliga- 
tions, which concern only the party himself, or with 
respect to property which the party possesses the power 
to charge or dispose of. But with respect to property 
placed by him beyond his control, or subjected by him 
to liens, he has no such personal privilege. He cannot, 
at his pleasure, affect the interests of other parties. 
"Whether, where a party revives a note secured by 
mortgage upon real estate, after the note is barred, he 
thereby revives the mortgage, was a question raised 
but not decided." — See syllabus. Lord vs. Morris, 18 
Cal., pp. 482, 483; see, also, McCarthy vs. White, 21 
Cal., p. 496; Heinlin vs. Castro, 22 Cal., p. 100; Coster 
vs. Brown, 23 Cal., p. 142; Cunningham vs. Hawkins, 
24 Cal., p. 403; Wormouth vs. Hatch, 33 Cal., p. 121; 
Arrington vs. Liscom, 34 Cal., p. 865; see, particu- 
larly, Grattan vs. Wiggins, 23 Cal., p. 16; Lent vs. 
Shear, 26 Cal., p. 861; Le Roy vs. Rogers, 30 Cal., p. 
229; Espinosa vs. Gregory, 40 Cal., p. 58, citing 
Hughes vs. Davis, 40 Cal., p. 117; Siter vs. Jewett, S3 



Code of Civil Procbdurb. 171 

Cal., p. 92. "Where an action upon a promissory 
note secured by a mortgage of the same date upon real 
property is barred by our Statute of Ximitations the 
remedy upon the mortgage is also barred.'^ — ^McCarthy 
vs. White, 21 Cal., p. 495, aflOLrming Lord vs. Morris, 
18 Cal., p. 482. 

30. MoBT^OAos. — ^A person who purchases property 
from a mortgagor, subsequent to the execution of a 
mortgage, may plead the Statute of Limitations in an 
action to foreclose the mortgage commenced after the 
statute has run against the debt secured by such mort- 
gage. — McCarthy vs. White, 21 Cal., p. 495. 

81. Renewal of Note extends liek or Mobt- 
QAGE. — A renewal of a note extends the lien of the 
mortgage given to secure the note, so that the Statute 
of Limitations will not run until the expiration of the 
new note given. — See Lent vs. Morrill, 25 Cal., p. 492. 
And this renewal extends the mortgage even against 
innocent purchasers. — Id. 

32. Joint Mortoaoe Debtors— One being absent 
7B0M State. — Three persons executed a joint mort- 
gage to secure their joint and several notes. One of 
the makers left the State. The note became outlawed 
as to the two makers living in the State. Meld : the 
lien of the mortgage was barred as to the two in the 
State, and it can only be enforced against the interest 
of the one as to whom the note is not barred. — Low vs. 
Allen, 26 Cal., p. 141. 

33. Mobtqage not always Babbed when Debt 
TOB WHICH IT 18 GIVEN 18 Barbed.— A mortgage 
given to secure the payment of a debt not in writing is a 
contract ** founded upon an instrument in writing," with- 
in the meaning of the Statute of Limitations, and an 
action for its foreclosure may be maintained at any time 
within four years from its breach, notwithstanding that 
the statute has in the meantime barred the original 
debt. — Union Water Co. vs. Murphy's Flat Pluming 
Co., 22 Cal., p. 620. 

34. Right to Redeem.— Where the assignee of one 
note (see facts of case), having the first right to the 
benefit of the mortgage, forecloses, and the property is 
sold, such foreclosure and sale extinguish the mort- 
gage. The holders of the other notes secured by the 
mortgage have a right to redeem, but when not made 
parties to the action they must assert this right within 
four years or be barred by the Statute of Limitations. 
The right to foreclose and the right to redeem are 
reciprocal, and the statute begins to run against the 
redemption at the time the right of action accrues on 



172 CoDB OP Civil Procedure. 

the mortgage. — Grattan vs. TViggins, 28 Cal., p. 16; 
and see further, as to right to redeem, Espinosa vs. 
Gregory, 40 Cal., p. 58; Siter vs. Jewett, 33 Oal., p. 
92; Cunnipgham vs. Hawkins, 24 Cal., p. 403; Arriug- 
ton vs. Lisoom, 34 Cal., p. 365. 

35. Pleading— Pleading ot the Statute of 
LiMffATiONB. — See Smith vs. Richmond, 19 Cal., p. 
476; Lick vs. Diaz, 80 Cal., p. 75. The defense of the 
Statute of Limitations is a personal privilege of the 
debtor, which he may assert or waive at his option, but 
it must be set up in some form either by demurrer 
or answer, or it will be deemed to have been waived. 
Grattan vs. Wiggins, 23 Cal., p. 16. It must be 
pleaded in the first instance and has no day of grace 
thereafter. — See Cooke vs. Spears, 2 Cal., p. 409, 

36. Statute, how pleaded by Demurreb. — A 
defense under the Statute of Limitations cannot be 
made by a demurrer which states in general terms 
that the complaint does not state facts sufficient to con- 
stitute a cause of action. The statute, in order to be 
available as a defense, must be distinctly stated in the 
demurrer. — Brown vs. Hartin, 25 Cal., p. 82; aflfd. in 
Farwell vs. Jackson, 28 Cal,, p. 106? Smith vs. Rich- 
mond, 19 Cal., p. 476. 

37. Right to use Water by adverse use. — See 
American Co. vs. Bradford, 27 Cal., p. 360. 

38. Averment that cause of action Accrued 
MORE THAN TWO YEARS PRIOR, ETC. — In an action for 
the value of services rendered a plea which does not 
aver that the cause of action accrued more than two 
years before the commencement of the action, but 
only that the services contracted to be rendered by the 
plaintiff were rendered more than two years before 
action brought, is insufficient as a plea of the Statute 
of Limitations. — Hartson vs. Hardin, 40 Cal., p. 264. 

39. Pleading Adverse Possession.— A plea of the 
Statute of Limitations, which states that the plaintiff 
was not seized of the land within five years before the 
commencement of the action, is fatally defective in 
not averring that neither the plaintiff^s predecessor or 
grantor was possessed within that time, and, also, be- 
cause no adverse possession by the defendant is alleged 
for any time anterior to the action. — Sharp vs. Daug- 
ney, 33 Cal., p. 605. 

40. Allegation of Adverse Possession, etc. — 
The statute is not well pleaded in an answer which 
states that '* if plaintiffs ever had any right or title to 
their claims, or to any portion thereof, they are barred 
by the Statute of Limitations, as the defendants have 



GODB OF OlTIL PROGEDimS. 



ITS 



been in the quiet and peaceable possession of the same, 
adversely to the plaintiffs, for a period of over five 
years.'* The averment that the plaintiff is ** barred by 
the Statute of Limitations," is merely a conclusion of 
law. It does not present any issuable fact. — Schroder 
▼B. Jahns, 27 Cal., p. 274; Caulfleld vs. Sanders, 17 
Cal., p. 569. The " period of over five years," during 
which it is alleged the defendants were in adverse pos- 
session, is not charged as having preceded the com- 
mencement of the action. — ^Table Mt. Tunnel C!o. vs. 
Stranahan, 31 Cal., p. 387. 

41. Abvsbse Possession by teitant ik commoit, 
ALLiQATioK OF.-^A person depending upon an adverse 
possession of a sufficient time of land, owned by him- 
self and the adverse party as tenants in common, must 
plead /octo from which it will affirmatively appear that 
his possession was of an adverse and hostile character; 
otherwise his possession of land will be deemed to be 
according to his right and in support of the title in 
cx>mmon. — Lick vs. Diaz, 30 Cal., p. 63. See further, 
as to adverse possession, Le Boy vs. Bogers, 30 Cal., 
p. 229. 

42. Allegations of facts, not of law, be- 
QUiRED. — ^A party relying on the Statute of Limita- 
tions, should not allege matter of law, but the &cts 
which bring it within the statute. — Boyd vs. Blankman, 
29 Cal., p. 44. 

43. Avebment of five yeabs covebs any less 
term. — An answer averring that the cause of action 
had not accrued within five years, is sufficient for five 
years, and for any period of limitation less than five 
years.— Boyd vs. Blankman, 29 Cal., p. 44. 

44. Items of Account. — Where the complaint 
states a cause of action for goods sold and delivered, 
and a bill of items is annexed to the same as an exhibit, 
with the date of each item, and answer which refers to 
the exhibit and avers that the last item only is within 
two years previous to the commencement of the action, 
and that, except as to the last item, " no right has 
accrued to said plaintiff by reason of the matter men- 
tioned and set forth in said complaint at any time 
within two years next preceding this action," is a good 
answer of the Statute of Limitations to all the items 
except the last. The words " preceding the commence- 
ment of this action," in such answer, are equivalent to 
the words ^^ preceding the filing of the complaint." — 
Adams vs. Patterson, 35 Cal., p. 122. 

45. Assumpsit.— A count in a complaint in the old 
form of assumpsit, for money had and received, in 



174 Code of Civil Procedure. 

which the promise is laid of a day more than ti;iro years 
prior to the oommencement of the action, is demurra- 
ble, on the ground that it shows the demand to be 
barred by the Statute of Limitations. — Keller vs. 
Hicks, 22 Cal., p. 457. 

46. Pleading by Demurker.— On demurrer to a 
complaint founded upon the Statute of Limitations, if 
the complaint fails to show whether the contract in suit 
was verbal or in writing, it will be presumed to have 
been in writing for all the purposes of the demurrer. — 
Miles vs. Thome, 38 Cal., p. 335. 

47. Pleading by Demurreb.— The defense of the 
Statute of Limitations may be presented by demurrer 
when it appears from the complaint that the period of 
limitation has elapsed since the cause of action accrued 
to the plaintiff, and no facts are alleged taking the 
demand out of the operation of the statute. — Mason vs. 
Oronise, 20 Cal., p. 211, affirming Smith vs. Richmond, 
19 Cal., p. 476; and Barringer vs. Warden, 12 Cal., p. 

^ 311. But the bar of the statute must clearly appear on 

the face of complaint. — Ord vs. Be la Guerra, 18 Cal., 
p. 68. 

48. By Answer. — But where the demand is in truth 
barred, but the fact does not appear upon the face of 
the complaint, the defense of the statute must be made 
by answer. — Smith vs. Richmond, 19 Cal., p. 476. 

49. New Promise. — A complaint upon a note barred 
by the statute is sufficient if it alleges that the defend- 
ant has within four years of the day when the suit was 
commenced " in writing acknowledged and promised 
to pay the note.'' Such allegation imports that the 
defendant signed the writing. — Portcfr vs. Elam, 25 
Cal., p. 291. The defendant's signature to the new 
promise was necessary, and the new promise must be 
in writing.— Pena vs. Vance, 21 Cal., p. 142. See, 
also, on this point, Barringer vs. Wafden, 12 Cal., p. 
311. 

50. New Promise. — It is sufficient where the com- 
plaint alleged an express promise to pay a debt which 
was barred by the statute to prove an acknowledgment 
of the debt from which a promise to pay is implied. 
See further facts concerning burden of proof, etc., Far- 
rell vs. Palmer, 36 Cal., p. 187. 

51. New Promise. — Where a creditor sues after the 
statute has run upon the original contract, his cause of 
action is not the original contract, for his action there- 
upon is barred, but it is the new promise, the moral 
obligation arising fVom the original contract binding 
in foTQ conseientice^ notwithstanding the bar of the 



CoDB OF Civil Pbocbdurb. 175 

statute being the coDsideration for the new promise. 
For authorities upon new promise, see Ang. on Lim- 
itations, p. 218 et seq. And the action must be brought 
on the new promise within four years. — See McCor- 
mick vs. Brown, 36 Cal., p. 184, and authorities therein 
cited. See, further, as to new promise, Smith vs. Rich- 
mond, 19 Cal., p. 476. 

52. Pleadikg new FB0MI8K— For payment of 
DEBT OUTLAWED, ETC. — See Smith vs. Richmond, 19 
Cal., p. 476. 

53. Ejectment.— In ejectment a plea of the Statute 
of Limitations of two years, under the Settlers' Act, is 
no defense. — Anderson vs. Fisk, 36 Cal., p. 625. 



CHAPTER n. 

THE TIME OF COMMENCINa ACTIONS FOB THE RECOVERY 

OF REAL PROPERTY. 

SxcTTOV 315. When the people will not sue. 

316. When action cannot be brought by grantee from the 

State. 
817. When actions by the people or their grantees are to be 

brought within five years. 

318. Seizin within five years, when necessary in action for 

real property. 

319. Such seizin, when necessary in action or defense arising 

out of title to or rents of real property. 

320. Entry on real estate. 

321. Possession, when presumed. Occupation deemed under 

legal title, unless adverse. 

322. Occupation under written instrument or judgment, 

when deemed adverse. 

323. What constitutes adverse possession under written in- 

strument or judgment. 

324. Premises actually occupied under claim of title deemed 

to be held adversely. 

325. What constitutes adverse possession under claim of 

title not written. 
3^. Relation of landlord and tenant as affecting adverse 

possession. 
327. Right of possession not aJSected by descent cast. 
828. Certain disabilities excluded from time to commenoe 

actions. 



*- 



176 



Code of Civil Procedure. 



Whan the 
people will 
not sue. 



^ 

^ 

^ 
\ 

^ 



^ 



Hi 



When 
action 
cftnnot be 
broaght by 

Santee 
>m the 
titate. 



315. The people of this State will not sue any 
person for or in respect to any real property, or the 
issues or profits thereof, by reason of the right or title 
of the people to the same, unless: 

1. Such right or title shall have accrued within ten 
years before any action or other proceeding for the 
same is commenced; or, 

2. The people, or those from whom they claim, shall 
have received the rents and profits of such real prop- 
erty, or of some part thereof within the space of ten 
years. 

Note.— stats. 1850, p. 843. See Farish vs. Coon, 40 
Cal., p. 33; Hall vs. Dowling, 18 Cal., p. 619. 

316. No action can be brought for or in respect 
to real property by any person claiming under letters 
patent or grants from this State, unless the same might 
have been commenced by the people as herein speci- 
fied, in case such patent had not been issued or grant 
made. 

NoTK.— stats. 1850, p. 343. 

317. "When letters patent or grants of real prop- 
erty, issued or made by the people of this State, are 
declared void by the determination of a competent 
Court, rendered upon an allegation of a fraudulent 
suggestion, or concealment, or forfeiture, or mistake, 
or ignorance of a material fact, or wrongful detaining, 
or defective title, in such case an action for the re- 
covery of the property so conveyed may be brought 
either by the people of this State or by any subse- 
quent patentee or grantee of the same property, his 
heirs or assigns, within five years after such determi- 
nation, but not after that period. 

Note.— Stats. 1850, p. 843. 

seizip 318. No action for the recovery of real property, 

yeare.when Or for the rccoverv of the possession thereof, can be 

necessary •/ x 

for^eai** maintained, unless it appear that the plaintiff, his 
property, auccstor, predeccssor, or grantor, was seized or pos- 



When 
actions by 
the people 
or their 
grantoee 
are to be 
brought 
within fiye 
years. 



Code op Civil Peocedurb. 177 

of the property in question, within five years 
before the commencement of the action. 

Note.— state. 1863, p. 325. 

1, Beal Propbbty.— City of Oakland vs. Carpen- 
tier, 13 Cal., p. 540; Morton vs. Folger, 15 Cal., p. 
275; Fremont vs. Seals, 18 Cal., p. 433; Clarke vs. 
Huber, 25 Cal., p. 596; Billinj^s vs. Harris, 6 Cal., p. 
383; Billings vs. Hall, 7 Cal., p. 3. For a digest of the 
above cited decisions on the several points involved see 
note to Sec. 812, ante, where these cases are discussed. 

2, Division Lihe&— Fences.— As to division lines 
between adjacent lands, acquiescence for the time pre- 
scribed by the Statute of Limitations concerning real 
property may fix the division line as to the owners, 
etc. — Sneed vs. Osborne, 25 Cal., p. 626, and authorities 
cited* 

8. Bight to Use Bunnikq Water— Adverse 
Bkjotment. — To acquire a right to the use of a run- 
ning stream by adverse enjoyment or prescription, it is 
necessary that such adverse ei\joyment or prescription 
should have continued for a period corresponding to 
the time fixed by the Statute of Limitations as a bar to 
an entry on land, viz., five years. — Crandall vs. 
Woods, 8 Cal., p. 144; Davis vs. Gale, 32 Cal., p. 26. 

4. Adverse Possessor allowing others below 
TO Use Water. — If one taking adverse possession of 
water, as against a prior appropriator, suffers a portion 
of the same to flow down to accommodate miners work- 
ing below, this does not prejudice his adverse posses- 
sion so as to prevent the running of the Statute of 
Limitations. — Davis vs. Gale, 32 Cal., p. 26. 

5. Water Bights Acquired by Adverse Pos- 
session. — The right to the use of a watercourse in the 
public mineral lands, and the right to divert and use 
the water taken therefrom, is acquired by appropriation 
and use, the person first appropriating it being deemed 
to have the title, as against all the world, except the 
United States and persons claiming under them, to the 
extent that he thus appropriated it before the righte of 
others attached. The righte thus acquired may be 
held, granted, abandoned, or lost by the same means 
as a right of the same character issuing out of lands to 
which a private title existe. The right of the first 
appropriator may be lost, in whole or in some limited 
portions, by the adverse possession of another. And 
when such person has had the continued, uninter- 

23 — ^VoL. I. 



178 CJoDB OP Civil Procbdubb. 

rupted, and adverBe ezuoyment of the watercourse, or 
of some certain portion of it, during the period limited 
by the Statute of Limitations for entry upon lands, the 
law will presume a grant of the 'right so held and 
epjoyed by him. — Bealey ts. 8haw« 6 East., p. 208; 
Balston ys* Buested, 1 Camb., p. 468; Bicard vs. 
Williams, 7 "Wheat, p. 59; Williams ts. Nelson, 23 
Pick., p. 141; Calvin vs. Burnet, 17 Wend., p. 562; 
Hammond vs. Zechner, 28 Barb., p. 473; Union 
Water Ck). vs. Crary, 26 Cal., p. 609. 

6. Bight to Wateb by advebbk ttbs, bt pre- 
bcription; bubdek of pboof, etc. — The general and 
established doctrine is that an exclusive and uninter- 
rupted eqjoyment of water, in any particular way, for 
a period corresponding to the time limited by statute 
within which an action must be commenced for the 
recovery of the property or of the assumed right held 
and ei]joyed adversely, becomes an adverse epjoyment 
sufficient to raise a presumption of title as against a 
right in any other person which might have been 
but was not asserted.-— 8 Kent's Com., pp. 441-446; 
Bealey vs. Shaw, 6 East., p. 214; Shaw vs. Crawford, 
10 John., p. 286; Johns vs. Stevens, 3 Vermont, p. 816; 
Union Water Co. vs. Crary, 25 Cal., p. 504. The right 
which the defendants claim under the grant, which 
they assumed to exist, as evidenced by their adverse 
use and enjoyment of the water for five years, they 
denominate an easement. An easement or servitude 
may be created by grant or prescription, and when 
created it will pass by conveyance with the dominant 
estate (that is, with the estate to which it is appurte- 
nant, as an incorporeal hereditament) attached to the 
servient estate, subjecting the latter to the benefit of 
the former. But the owner of the easement or servi- 
tude has no general property in nor seizin of the 
servient estate, though he may, by holding a fee in the 
dominant estate, have an estate of inheritance in the 
easement or servitude. — Wash, on Easements and Ser- 
vitudes, Ch. 1, Sec. 1; Ersk. Inst., p. 862; Wojf vs. 
Frost, 4 Sand. Ch. B., p. 89. A grant of an estate in 
lands, whether corporeal or incorporeal, may be pre- 
sumed from an adverse enjoyment for the period corre- 
sponding to the Statute of Limitations within which an 
action might have been maintained against the person 
holding and enjoying adversely. But what must be 
the circumstances under which such presumption may 
arise? In order that the eijoyment of an easement in 
another's land may be conclusive of the right claimed, 
it must have been adverse in the legal sense of the 



Code op Civil Procedure. 179 

lerTD ; that is, the right must have been asserted under 
a claim of title, with the knowledge and acquiescence 
of the owner of the land, and uninterrupted. The bur- 
den of proving this is on the party claiming the ease- 
ment. If he leaves it doubtful whether the enjoyment 
was adverse, known- to the owner and uninterrupted, 
it is not conclusive in his favor. — 2 Greenleaf s Ev., 
Sec. 539; Greenleafs Cruise, Tit. 31, Ch. 1, note 1 to 
Sec. 21, and cases therein cited. According to the 
common law syetem of pleading, a defendant could 
not give in evidence under the general issue, in excuse 
or justi^catiun of an alleged trespass, a right of com- 
mon, or a public or private right of way, or a right to 
an easement, nor any interest in land short of property 
or right of possession. — Saunders vs. Wilson, 15 Wend., 
p. 338; Babcook vs. Lamb, 1 Cow., p. 239; Bouse vs. 
Bardin, 1 Hen. Black'., p. 352; 2 Saund. PI. and Ev., 
p. 856; 1 Chitty PI., p. 505. A defense of the kind 
mentioned had to be pleaded specially. The reason of 
the rule was to prevent surprise. — Demick vs. Chap- 
man, 11 John., p. 132. The rule of the common law 
here referred to has not been changed so as to obviate 
the necessity of pleading specially such defense. By 
the law of this State the defendants are bound to inter- 
pose their alleged right by answer as well as by evi- 
dence, provided it be conceded that plaintiff had the 
prior right and title to the waters of the creek. — ^Ameri- 
can Co. vs. Bradford, 27 Cal., pp. 366, 367. 
7. GE17ERALLT. — See note to Sec. 320, post. 

819. 1^0 cause of action, or defense to an action, Sneh seizin, 
arisin^c out of the title to real property, or to rents or poceMary 

^ r ± JJ in action or 

profits out of the same, can be effectual, unless it defense 

* ' ' arising oat 

appear that the person prosecuting the action, or mak- ?Jnt«^ofroS 
ing the defense, or under whose title the action is ^^y^* 
prosecuted, or the defense is made, or the ancestor, ^ 
predecessor, or grantor of such person was seized or 
possessed of the premises in question within five years 
before the commencement of the Act in respect to 
which such action is prosecuted or defense made. 

Note.— State. 1863, p. 825. 
^ 1. Kekts or Pbofits. — See Kimball vs. Lohmas, 
81 Cal., p. 159, afirming Halleck vs. Mixer, 16 Cal., 
p. 574. 

2. Ik ak ACTioir to recoyek Lakbs, the plaintiff 
can only recoyer the rents and profits for three years 



180 Code of Civil Procedure. 

only prior to the commencement of the action, if the 
defendant pleads the Statute of Limitations as to 
them. — Carpentier vs. Mitchell, 29 Cal., p. 330, and 
authorities cited therein; affirming, also, Richardson vs. 
Williamson, 24 Cal., p. 389; see, also. Sec. 312, ante; 
see note to next section. 

Entry on 320. ISo entry upon real estate is deemed sufficient 
or valid as a claim, unless an action be commenced 
thereupon within one year after making such entry, 
and within five years from the time when the right to 
make it descended or accrued. 

Note.— Stats. 1863, p. 325. 

1. Mexican' Gbants. — This Chapter embodies the 
provisions of statutes existin/sr prior to the adoption of 
the Code relative to the time of commencing actions for 
the recovery of real property. They have b^n care- 
fully revised and placed in logical order, but no sub- 
stantial changes have been made. Section 6 of the 
Act of 1863 (Stats. 1863, p. 326) provides, amon^ other 
things, that **any person claiming real property, or 
the possession thereof, or any right or interest therein, 
under the title derived from the Spanish or Mexican 
Governments, or the authorities thereof, which shaU 
not have been finally confirmed by the Government 
of the United States, or its legally constituted author- 
ities, more than five years before the passage of this 
Act, may have five years after the passage of this Act 
in which to commence his action for the recovery of 
such real property, or the possession thereof, or any 
right or interest therein, or for rents or profits out of 
the same, or to make his defense to an acliou founded 
upon the title thereto; And provided further, that noth- 
ing in this Act contained shall be so construed as to 
extend or enlarge the time for commencing actions for 
the recovery of real estate or the possession thereof, 
under title derived from Spanish or Mexican Govern- 
ments, in a case where final confirmation has already 
been had, other than is now allowed under the Act to 
which this Act is amendatory.'' As the time fixed in 
this statute has expired, and all rights that have accrued 
under it are preserved by the saving clause in the pre- 
liminaiy part of this Code (see Sec. 8, ante; and see 
Billings vs. Harvey, 6 Cal., p. 381), it was thought un- 
necessary to insert any provisions excepting lands 
within those grants from the operation of the general 
rule relating to real actions. For decisions respecting 



Code of Civil Peocedtjiub. 



181 



Possession, 

when 

presumed. 



these grants, see Billings vs. Harvey, 6 Cal., p. 881; 
Billings vs. Hall, 7 Cal., p. 1; Dominguez vs. Domin- 
gucz, 7 Cal., p. 424. Statute does not begin to run 
until after issuance of patent. — Reed vs. Spicor, 27 Cal., 
p. 58; Figg vs. Mayo, 39 Cal., p. 262; Soto vs. Kroder, 
19 Cal., p. 87; Judson vs. Mallay, 40 Cal., p. 300; 
Johnson vs. Van Dyke, 20 Cal., p. 225; Downer vs. 
Smith, 24 Cal., p. 114. But see the elaborate opinion 
of Justice Field in Montgomery vs. Bevans, U. S. 
Court, Ninth Circuit, 1 Eep.; also Palmer vs. Low, 
opinion by Sawyer, J., Pacific Law Reporter, Vol. IV, 
No. 20. 

2. Pleading. — Anderson vs. Fisk, 36 Cal., p. 625; 
Ord vs. Dela Querra, 18 Cal., p. 67; Richardson vs. Wil- 
liamson, 24 Cal., p. 289; Vassault vs. Sietz, 31 Cal., p. 
228; Beach vs. Gabriel, 29 Cal., p. 584; Davis vs. 
Davis, 26 Cal., p. 23; Mahotiey vs. Van Winkle, 33 
Cal., p. 448. See note to Sec. 312, ante. 

321. In every action for the recovery of real prop- 
erty, or the possession thereof, the person establishing 
a legal titje to the property is presumed to have been 
possessed thereof within the time required by law, and 
the occupation of the property by any other person is 
deemed to have been under and in subordination to 
the legal title, unless it appear that the property has 
been held and possessed advei'sely to such legal title, 
for five yeara before the commencement of the action. 

Note.— Stats. 1850, p. 343. 

Adverse Possession not presumed. — Possession 
is presumed to be in subordination to the legal title, 
unless it be admitted by the opposing party, or found 
as a fact that the possession was adverse. — Sharp vs. 
Daugney, 33 Cal., p. 506. See note to Sec. 312. 



322. When it appears that the occupant, or those Occupation 

under 

under whom he claims, entered into the possession of wntten 
the property under claim of title, exclusive of other mint^hen 
right, founding such claim upon a written instrument, ^IvmbI 
as being a conveyance of the property in question, or 
upon the decree or judgment of a competent Court, 
and that there has been a continued occupation and 
possession of the property included in such instrument. 



Oconpation 
deemed 
under l^:al 
title, unless 
adverse. 



182 CJoDE OF Civil Procbduke. 

decree, or judgment, or of some part of the property, 
under such claim, for five years, the property so in- 
cluded is deemed to have been held adversely, except 
that when it consists of a tract divided into lots, the 
U possession of one lot is not deemed a possession of any 
other lot of the same tract. 

Note.— Stats. 1850, p. 343. 

1. Enteriko undkr claim of Title.— The object 
of this section is to define accurately under what con- 
ditions a possession shall be deemed adverse when the 
paity enters under a claim of title founded upon a 
written instrument, judgment, or decree. The person 
relying upon this section, in aid of his possession, must 
show that he entered not only under a claim of title, 
but that it was exclusive of any other right. — Figg vs. 
Mayo, 39 Cal., p. 262. 

2. Adverse Possession of Predecessor — Pospes- 
'siON to be Continuous. — An adverse possession for 

five years must be continuous in the party who is the 
first adverse possessor, or in him and his grantees, in 
order to acquire a perfect title. And an adverse pos- 
sessor cannot add to his own )X)ssession that of the one 
who preceded him when he did not enter into posses- 
sion under or through the one who preceded. Adverse 
possession must be actual, not an assertion of posses- 
sion by words or an action, and if the continuity is 
broken, either by fraud or by a wrongful entry, the 
protection afforded by the Statute of Limitations is 
destroyed. — San Francisco vs. Fulde, 37 Cal., p. 349. 

3. Adverse Possession may be at any time 
PRIOR TO Action not for five years next pre- 
ceding Action. — The purchase of an outstanding 
adverse claim for the purpose of quieting title to land 
by one in possession claiming adversely to all others, 
does not estop the purchaser fVom setting up the statute 

\ against a third party. An adverse possessor for five 

years acquires a fee simple title to the land so held. 
Adverse possession need not be for the five years next 
preceding the action — ^an adverse continuous posses- 
sion for five years at any time prior to the commence- 
ment of the action being sufiicient. A title once 
acquired by adverse possession for five years continues 
perfect until conveyed by the possessor, or until lost by 
another adverse possession for five years. — Cannon vs. 
Stockmon, 36 Cal., p. 536. See, also, as to adverse 
possession, Arrington vs. Liscom, 34 Cal., p. 335. 



Code of Civil Procbdurb. 188 

4. Ettxct or Greatiok ot Easemutt ok Ad- 
TBBBE P088X88IOK.— The creation of an easement upon 
land does not prevent the statute from bemg set in 
motion and running in fiiyor of a party entering upon 
and claiming the soil upon which the easement has 
been imposed, adversely to the grantor of the ease- 
ment. — San Francisco vs. Galderwood, 81 Gal., p. 685. 

5. Advebbe Po88E88Iok-~Ga8e.— a. was in posses- 
sion of land five years, under claim of title. B. and G., 
and their grantors, during this time had a perfect title 
to the land. They sued D. and others to recover posses- 
sion of it, but did not make A. a party to the action. 
B. and G., and their assigns, recovered judgment, and 
after five years had run the Sheriff turned A. out of 
possession under a writ of restitution, issued on the 
Judgment, and placed B. and G. in possession. The 
Gourt held that the title of A., by adverse possession, 
was not impaired by this entry of B. and G. — See Le 
Boy vs. Rogers, SO Gal., p. 230. 

6. Advebse Entry upon GoNSTBTrcTiYE Posses- 
sion. — ^Adverse possession may be acquired to part of 
a tract of land while the owner Of the true title is in 
the actual possession of the other part. Actual pos- 
session of a part, with constructive possession of the 
rest, will not prevent the Statute of Limitations from 
running in favor of one who enters adversely upon the 
constructive possession. — Davis vs. Perley, 80 Gal., p. 
630. 

7. Advebse Possession or Grantor against 
Grantee. — When a grantor takes adverse possession 
of land granted by him, and holds continuous adverse 
possession for the statutory period, he may set up the 
Statute of Limitations against the grantee. — Franklin 
vs. Dorland, 28 Gal., p. 175. 

8. Division Lines.— As to location of division lines, 
adverse possession may establish a division boundary 
between adjacent owners, although it may not be the 
boundary specified in the deeds, if the owners have 
acquiesced therein for th« length of time prescribed by 
the Statute of Limitations as a bar to the right of en- 
try upon real property. — Sneed vs. Osborne, 25 Gal., 
p. 619. 

9. Purchase at Irregular Sale.— From lapse 
of time and acquiescence in the possession of the pur- 
chaser the regularity of a sale under a power may be 
inferred, and a presumption indulged in that due notice 
thereof, as required by the power, was given. Perfect 
title may be acquired by adverse possession for the stat- 
utoiy time.— Simpson vs. Eckstein, 22 Gal., p. 580. 



184 Code of Civil Prooedu&b. 



10. AdYEKSE PO66V88IOX TIKPEK CLAIM OF TiTLK. 

It was held that the Statute of Limitations runs only in 
&vor of parties in possession claiming; title adversely to 
the whole world, and not in favor of those who assert 
the title to be in others. If it, therefore, never runs in 
&vor of the plaintiff, his grantees are in no better 
position. To render possession adverse, so as to set in 
motion the Statute of Limitations, it must be accom- 
panied with a claim of title, and this title, when 
founded '* upon a written instrument as being a con- 
veyance of the premises/' must be asserted by the 
occupant in good faith, in the belief that he has good 
right to the premises against all the world. The claim 
must be absolute — ^not dependent upon any contingen- 
cies — and must be ** exclusive of any other right." 
And to render the adverse possession thus commenced 
effectual as a bar to a recovery by the true owner, the 
possession must continue uninterrupted for five years 
under such claim. When parties assert, either by de- 
claration or conduct, the title to property to be in 
others, the statute, of course, cannot run in their favor. 
Their possession, under such circumstances, is not 
adverse. — McCracken vs. San Francisco, 16 Cal., 
p. 635. 

11. Adverse Possession imDER a claim or 
Title. — It was held, to constitute a prescription by 
Spanish law, or a foundation for adverse possession at 
common law, the instrument under which the occu- 
pant entered and claims the premises must purport in 
its terms to transfer the title — ^must be such as would, 
in fact, pass the title had it been executed by the true 
owner, and in proper form, with the exception, per- 
haps, of a contract to convey after payment of the con- 
sideration; and the occupant must have entered under 
it in good faith, in the belief that he had a right to the 
premises, and with the intention to hold them against 
the world. The possession must have been adverse in 
its inception, and during its continuance* — Kieto va. 
Carpenter, 21 Oal., p. 490. 

12. Two KINDS OF Adverse Possession.— Adverse 
possession is of different kinds: 1. Where the posses- 
sion is taken by the bow and spear, without color of 
title, but with the intent to claim the fee, exclusive of 
any other right, and hold it against all comers. 2. 
Where the possession is taken under a claim of title 
founded upon a written instrument, as a conveyance or 
Judgment of a Court, etc. Either of these kinds of 
adverse possession is sufficient to set the statute in 
motion. See the differences between the rights ac- 



Code of Civil Procedure. 186 

quired under them, discussed in the opinion of the 
Court. — Kimball vs. Lohmas, 31 Cal., p. 154. 

13. PERsoifS Excepted from provisions of the 
Statute. — Strict construction of the Statute of Lim- 
itations formerly required, etc. — See note to Sec. 312, 
ante, case of Tynan vs. Walker, 35 Cal., p. 635. 

14. Generally .—See note to Sec. 312, ante. 

323. For the purpose of constituting an adverse ^g^jj^n^^ 
possession by any person claiming a title founded upon Jj^^^n ^ 
a written instrument, or a judgment or decree, land is w^aenin- "^ 
deemed to have been possessed and occupied in the JudJSwit!*' 
following cases: 

1. Where it has been usually cultivated or improved; 

2. Where it has been protected by a substantial in- 
closure; 

3. Where, although not inclosed, it has been used 
for the supply of fuel, or of fencing timber for the 
puri)oses of husbandly, or for pasturage, or for the 
ordinary use of the occupant; 

4. Where a known farm or single lot has been 
partly improved, the portion of such farm or lot that 
may have been left not cleared, or not inclosed accord- 
ing to the usual course and custom of the adjoining 
country, shall be deemed to have been occupied for 
the same length of time as the part improved and cul- 
tivated. 

Note. — Stats. 1850, p. 343. A pretended possession 
of land by an inclosure which is not substantial, without 
actual occupancy of any jwrtion of it, cannot consti- 
tute an adverse possession. — Borel vs. Rollins, 30 Cal., 
p. 408. See, for adverse possession, Vassault vs. Seitz, 
31 Cal., p. 225, and notes to Sees. 312 and 322, ante. 

S24. WTiere it appears that there has been an Premisei 
actual continued occupation of land, under a claim of J^^Jf^y®* -^ 
title, exclusive of any other right, but not founded J-Jft"**' 
upon a written instrument, judgment, or decree, the 2^2555*^ 
land BO actually occupied, and no other, is deemed to 
Iwive been held adversely. 

Note.— Stats. 1850, p. 344. See notes to Sees. 812, 

322, and 323, ante. 
^*- VOL. I. 



_i 



186 



Code of Civil Procedure. 



What 
oonstitutos 
advene 
pomession 
under 
claim of 
title not 
written. 



Relation of 
landlord 
and tenant 
as affecting 
adverse 
poflsossion. 



f^j 



825. For the purpose of constituting an adverse 
possession, by a person claiming title not founded upon 
a written instrument, judgment, or decree, land is 
deemed to have been possessed and occupied in the 
following cases only: 

1. Where it has been protected by a substantial 
inclosure; 

2. Where it has been usually cultivated or im- 
proved. 

Note.— Stats. 1850, p. 844. 

8ubd, 1. — See note to Sec. 328. It is only necessaiy 
to show that the land was held in adverse possession by 
a substantial inclosurei and the occupation, cultivation, 
or use of the land need not be proved. — Polack vs. Mc- 
Grath, 32 Gal., p. 15; see, also, notes to Sees. 812 and 
322, ante. 

326. When the relation of landlord and tenant has 
existed between any persons, the possession of the 
tenant is deemed the j^ossession of the landlord until 
the expiration of five years from the termination of 
the tenancy, or, where there has been too written lease, 
until the expiration of five years from the time of the 
last payment of rent, notwithstanding that such tenant 
may have acquired another title, or may have claimed 
to hold adversely to his landlord. But such presump- 
tions cannot be made after the periods herein limited. 

Note. — Stats. 1850, p. 344. A tenant cannot set up 
title against his landlord without first surrendering pos- 
session. — Tewksbury vs. Magraff, 33 Cal., p. 237, and 
cases cited therein. A tenant may not be estopped 
where, in taking the lease, he was imposed upon by 
the lessor. — Gleim vs. RisQ, 6 Watts, p. 44. So, if the 
tenant has been ousted by title paramount, he may 
plead it (Hayncs us. Maltby, 8 Term R., p. 441); also, 
that the landlord's title has ceased, or has become ex- 
tinguished (Jackson vs. Rowland, 6 Wend., p. 666); or 
that he has acquired his landlord's title by purchase 
from him, or at a judicial sale, or by a redemption. 
And if the action is brought by a vendee of the land- 
lord, the tenant may dispute the derivative title. — ^Phil- 
lips vs. Pierce, 5 B. & C, p. 433; Reray vs. Cotter, 29 
Cal.y p. 168. So, if tenant did not take possession 



CoDB OF Civil Procbdurb. 187 

under the lease, but was in possession at the time he 
took the lease, he may dispute the landlord's title with- 
out first surrendering the possession; for, not having 
iieceived the possession from him, he is under no moral 
or legal obligation io restore it before adopting a hostile 
attitude, and he may have attorned by mistake to one 
who had no title. — Cornish vs. Searell, 8 B. & C, p. 
471. To these exceptions may be added, possibly, the 
case where it appears affirmatively that both parties 
have acted under a mutual mistake as to the law in 
regard to the title of the lessor. — Glen vs. Gibson, 9 
Barb., p. 638; Tewksbuiy vs. Magraff, 33 Cal., p. 245. 

327. The ricfht of a person to the possession of Right of 
real property is not impaired or aftected by a descent g^'dooen^ 
cast in consequence of the death of a person in pos- ^^^ 
session of such property. 

Note.— Stats. 1850, p. 344. 

328. If a person entitled to commence an action Cortoin 

disabilities 

for the recovery of real propertj^ or for the recovery gjf^"^^^ 
of the possession thereoi^ or to make any entry or commence 
defense founded -on the title to real property, or to ^^^^ 
rents or services out of the same, be at the time such 
title first descends or accrues, either: 

1. Within the age of majority; or, 

2. Insane; or, 

3. Imprisoned on a criminal charge, or in execution, 
upon conviction of a criminal offense, for a term less 
than tor life; or, 

4. A married woman, and her husband be a neces- 
sary party with her in commencing such action or ^^ 
making such entry or defense; 

—The time during which such disability continues is 

not deemed any portion of the time in this Chapter 

Hmited for the commencement of such action or the 

making of such entry or defense; but such action may 

be commenced, or entry or defense made, within the 

period of five years after such disability shall cease, ; 

or after the death of the person entitled who shall die 

under such disability; but such action shall not be - 



188 Code op Civil Procedure. 

commenced, or entiy or defense made, after that 
period. 

NoTE.—Stats. 1863, p. 325. 



CHAPTER in. 

THE TIME OP COMMENCING ACTIONS OTHER THAN FOR 
THE RECOVERY OP REAL PROPERTY. 

Sbction 335. Periods of limitation prescribed. 

336. Within five years. 

337. "Within four years. 

338. Witliin three years. 

339. Within two years. 

340. Within one year. 

341. Within six months. 

342. Same. 

343. Actions for relief not hereinbefore provided for. 

344. Where cause of action accrues on mutual account. 

345. Actions by the people subject to the limitations of this 

Chapter. 

346. Action to redeem a mortgage without account of rents 

and profits. 

347. Same, when there are two or more such mortgages. 

Periods of 336. The periods prescribed for the commenee- 

limitation « . t i n i n t 

prescribed, ment 01 actions other than tor the recovery oi real 
property, are as follows: 

Within five 336. Within five years: 

years. , 

An action upon a judgment or decree of any Court 
of the United States, or of any State within the United 
States. 

Note.— Stats. 1850, p. 343. 

1. Domestic Judgments. — The statute runs as weU 
against judgments rendered in this State as against 
foreign judgments. — Mason vs. Cronise, 20 Cal., p. 218. 

2. Foreign Judgment. — A foreign judgment is not 
'*a contract, obligation, or liability founded upon an 
instrument in writing,'^ within the meaning of Sec. 337, 
post. — Patten vs. Ray, 4 Cal., p. 287. 

8. A Judgment Payable in Ikbtallhentb. — ^The 
statute begins to run on a judgment payable in instaU- 
ments from the period fixed for the payment of each 




CoDK OF Civil Procedure. 189 

installmenti as it becomes due. — De Uprey vs. De 
Uprey, 23 Cal., p. 352. 

4. Judgment against Intestate, obtained dub- 
ING HIS LIFE. — By common law, when the limitation 
began to run, a subsequent disability, as death of the 
party bound, etc., did not stop it. But this doctrine 
does not apply where a judgment is obtained against 
an intestate in his lifetime, and no execution levied. 
In such case, the judgment creditor being prevented 
by law from suing after the death of the debtor, the 
Statute of Limitations ceases to run until presentation 
of the claim to the administrator. — Quivey vs. Hall, 19 
Cal., p. 98. 

6. Five- Ye AB Limit on Fobeign Judgment. — 
Cavender vs. Guild, 4 Cal., p. 250. Statute begins to 
run only from the time ot final entry of judgment. — 
Parke vs. Williams, 7 Cal., p. 247. 

33T. Within four years: 

An action upon any contract, obligation, or liability Within 
founded upon an instrument in writing. 

Note.— stats. 1860, p. 343. 

1. Construction of Section.— This section has 
been held to refer to contracts, obligations, and liabili- 
ties resting in or growing out of written instruments, 
not remotely or ultimately, but immediately. Thyis, 
where two persons executed a note, one as principal 
and the other as surety, and a judgment obtained upon 
the note is paid by the surety, the obligation of the 
principal to pay the surety is not ** founded upon a 
written instrument " within the meaning of this sec- 
tion.— Chipman vs. Morrill, 20 Cal., p. 131. 

2. What is a Contract in writing; an Order 

XNTERED ON THE BoOKS OF A CORPORATION.— A per- 
son acted for two years as President of a corporation, 
with an understanding that he should be paid, but with 
no agreement to that effect or as to compensation. 
Having been reelected for the third year, the Trustees 
made an order as followd: ** Ordered that the compen- 
sation of the President be established at fifty dollars per 
month." And the person continued to serve for two 
years longer. Held: that such order was a contract to 
pay past as well as future services at the rate of fifty 
dollars per month, and that the order was a contract in 
writing within the meaning of the Statute of Limita- 
tions, both for past as well as present pay, and that the 
statute ran only from the date of the order. — Bos- 
borough vs. Shasta B. Canal Co., 22 Cal., p. 556. 




190 Code of Civil Procedure. 

8. Audited Accoitnts. — Accounts with the words 



(t 



audited and approved,** and ** certified to be correct," 
written on their face, are instruments in writing within 
the meaning of this section. — SannickRon vs. Brown, 5 
Cal., p. 57. Statute nifui from, maturity of contrncU 
The right of action upon a contract in writing is not 
barred until the lapse of four years after maturity. — 
Bagley vs. Eaton, 10 Cal., p. 126. 

4. Lost Contract. — The flict that the contract was 
in writing, and not the present existence of the writin|[f 
itself, determines the time within which the action 
must be brought. — Bagley vs. Eaton, 10 Cal., p. 126. 

5. Published offer of reward held to be a con- 
tract in writing, etc. — Kyer vs. Stockwell, 14 Cal., p. 
134. 

6. City Bonds and Bonds of municipal corpora- 
tions to provide for payment of indebtedness when not 
barred by Statute of Limitations. — Underhill vs. Trus- 
tees of the City of Sonora, 17 Cal., p. 173. 

7. Actions on Promissory Notes.— Banks vs. Mar- 
shall, 23 Cal., p. 223. 

8. Certificates of Deposit.— And of the same 
nature as promissory notes are certificates of deposit. 
The statute runs from the date, and no demand is 
required to set the statute in motion. — Brummagim vs« 
Tallant, 29 Cal., p. 503. 

9. Note and Mortoaoe. — ^A note payable six 
months after date, with interest monthly in advance, 
and " in case the said interest, or any portion thereof, 
should become due, and remain unpaid after demand, 
then the mortgage given by me, of even date herewith, 
which is given to secure the pa^-ment of this note, may 
be foreclosed,'* etc.; and the mortgage contained a pro- 
vision by which the mortgagee was "empowered to 
foreclose said mortgage, according to the provisions in 
said note contained.'* The Court held that the prompt 
parent of the interest on demand, when it fell due, 
did not, under these clauses in the note and mortgage, 
prolong the time of payment beyond the time specified 
in the note, and that a cause of action accrued upon the 
note, and to foreclose the mortgage, immediately upon 
the expiration of the six months, although there had 
been no default in the payment of interest. An action 
not commenced within four years after the expiration 
of six months from date ot the note, is barred by the 
Statute of Limitations.— Pendleton vs. Bowe, 84 Cal., 
p. 149. 

10. Mortgage. — A mortgage given to secare a pay- 
ment of a debt, of which there is no written agreement, 



Code of Civil Procedure. 



191 



is yet a contract, *' founded upon an instrument in 
writing;'' and an action may be had at any time 
within four years of the breach of the mortgage, 
although the original debt has become barred. — Union 
Water Co. vs. Murphy's Flat F. Co., 22 Cal., p. 620. 

11. Fob Actions of Fobeclobure and Bkdemp- 
TION, ETC. — See Grattan vs. Wiggins, 28 Cal., p. 16; 
Cunningham vs. Hawkins, 24 Cal., p. 403. 

12. Gensballt.— See note to Sec. 812, ante, com- 
menting on McCarthy vs. White, 21 Cal., p. 495; see 
Grattan .et al. vs. Wiggins, 28 Cal., p. 16; see, also, 
Pearis vs. Covillaud, 6 Cal., p. 617; Lord vs. Morris, 
18 Cal., p. 482, commented on in note to Sec. 812, ante. 

18. New Enactment. — The Legislature of 1872 
passed the following enactments: 

State. 1871-2, p. 819. 

An Act respecting the limitations of actions* 

[Approred March 11, 1872.] 

[Enacting clause.] 

Slction 1. Where bankers' certificates of deposit 
have heretofore been given to any party since deceased 
and not found until after administration of his or her 
estate, an action may be maintained thereon by the 
heirs or legal representatives at any time within six 
months after such finding. 

Sec. 2. This Act shall take effect from and after ite 
passage. 

State. 1871-2, p. 401. 

An Act supplementary to an Act entitled an Act 
defining the time for commencing civil actions^ 
passed April twenty-second, eighteen hundred and 

fifty. 

[Approved March 16, 1872.] 
[Enacting clause.] 

Section 1. There shall be n^ limitation upon the 
right to maintain an action for the recovery of money 
or other property deposited with any bank, banker, 
trust company, or savings and loan society. 

Sec. 2. All Acte and parte of Acte in conflict here- 
with, so far as the same are in conflict, are hereby 
repealed. 

Sec. 3. This Act shall take effect from and after ite 
passage. 

Brummagim vs. Tallant, 29 Cal., p. 508. 



192 Code op Civil Procedure. 

Within 338. Within three years: 

1. An action upon a liability created by statute, 
other than a penalty or forfeiture; 

2. An action for trespass upon real property; 

3. An action for taking, detaining, or injuring any 
goods or chattels, including actions for the specific 
recovery of personal property; 

4. An action for relief on the ground of fraud or 
mistake. The cause of action in 6uch case not to be 
deemed to have accrued until the discovery, by the 
aggrieved party, of the facts constituting the fraud or 
mistake. 

Note.— stats. 1850, p. 843. 

1. Liability created by Statute.— -The claim 
of a District Attorney, for his commission on debts 
recovered for the county, comes within Subdivision 1 
of this section. — Higby vs. Calaveras County, 18 Cal., 
p. 176. 

2. Bents and Protits. — In an action to recover 
lands the plaintiff can recover the rents and profits for 
three years only, prior to the commencement of the 
action, if this section is pleaded.— Carpenter vs. Mitch- 
ell, 29 Cal., p. 330; see, also, Love vs. Shartzer, 31 
Cal., p. 487. 

3. Fraudulent Concealment. — The Statute of 
Limitations ii^ not intended to protect a person who, 
by fraudulent concealment, has delayed the assertion of 
a ri^ht.— See Kane vs. Cook, 8 Cal., p. 449. 

4. Allegation of Discovery.— The fact of the dis- 
covery of the fraud must be alleged to have been made 
within three years. — Sublette vs. Tinney, 9 Cal., p. 423. 

5. Constructive, as well as actual, Fraud. — 
This section is applicable to constructive as well as 
actual fraud, and an action grounded upon either may 
be commenced within three years after discovery. — 
Boyd vs. Blankman, 29 Cal., p. 20. 

6. When Concealment is not Fraudulent. — 
"Where three persons entered into a partnership agree- 
ment, by the terms of which the partnership was to be 
kept secret, and plaintiff, ignorant of the existence of 
the partnership, sold goods to one of the firm individ- 
ually in 1854, and afterwards, in 1860, discovering that 
the partnership existed in 1854, and that the goods 
went to the uses of the concern, brought suit against 
the three. Meld: that this agreement to the partner- 



Code of Civil Proobdurb. 198 

ship secret, and its mere concealment from plaintiff, do 
not amount to such a fraud as to avoid the Statute of 
Limitations. — Soule vs. Atkinson, 18 Cal., p. 225. 

7. To WHAT Frauds section does not apply.— 
Subd. 4, it has been held, does not apply to an action 
to set aside and cancel a conveyance, upon the ground 
that it is a cloud upon the title of the plaintiff, even if 
the Court is asked to set aside the conveyance because 
it was made to defraud a creditor. — See Hager vs. 
Shindler, 29 Cal., p. 60; Stewart vs. Thompson, 32 
Cal., p. 260. 

8. Generally.— See Currey vs. Allen, 34 Cal., p. 
254. 

339. Within two years: 

1. An action upon a contract, obligation, or liability, within 
not founded upon an instrument of writing; 

2. An action against a SherilBF, Coroner, or Consta- 
ble, upon the liability incurred by the doing of an act 
in his official capacity, and in virtue of his office, or 
by the omission of an official duty, including the non- 
payment of money collected upon an execution. But 
tbis subdivision does not apply to an action for an 
escape; ^ 

3. An action upon a judgment, or upon a contract, 
obligation, or Hability for the payment of money or 
damages, founded upon an instrument in writing, exe- 
cuted out of this State; 

4. An action to recover damages for the death of 

one caused by the wrongful act of another. 

•r 

Note. — The first and second subdivisions are based 

upon Acts of 1850 and 1859 (Stats. 1850, p. 843; 1859, *^y ^^ 

p. 306). The third subdivision is a substitute for the /C 

numerous provisions relative to the time in which ac- ^ *^ 

tions may be commenced upon liabilities incurred with- /^ ^^ 

out the State, and founded upon judj^nents or written y ^ V 

instruments. The fourth subdivision is based upon Act y *t 

of 1862 (Stats. 1862, p. 447). j 

1. A88UMP8IT, for money had and received.— See ^ •^ 
Keller vs. Hicks, 22 Cal., p. 467. 1* y 

2. Account— Items of barrbd.— "Where an ac- - ^ ^ ,■ 
count is not a mutual one the statute bars each item a ^ 

^ C 

25 — ^VoL. I. 




194 Code op Civil Procbdurk. 

two years after its deliveiy. — Adams vs. Patterson, 35 
Cal., p. 122. Where a i>arty is selling goods from time 
to time and charging them, and the other pays him 
money which he credits on the account as a payment, 
this credit does not make the account a mutual one 
within the meaning of the Statute of Limitations. — 
Id.; see, also. Fray lor ts. Sonora M. Co., 17 Cal., p. 
595; see Sec. 344, post, and note. 

3. CLAIlIfi TOR BECOYEBT OF PTJBCHA8S KONET AT 

Sale made bt citt.— Claims against the City of 
San Francisco by the bidders at the attempted sale in 
December, 1853, for the purchase money paid on such 
sale, are within the fourth subdivision of the seven- 
teenth section of the Limitation Act, and are barred 
by a fiiilure to sue within two years from the date of 
the receipt of the money by the city. — Pimental vs. 
The City of San Francisco, 21 Cal., p. 351. 

4. Receipt fob Monet.— A mere naked receipt 

in writing, acknowledging the delivery of money, is 

not a contract, and does not import a promise, obliga- 

^ tion, or liability, and an action upon it is therefore 

^ barred by the Statute of Limitations in two years. 

But a receipt or acknowledgment in writing for 
money, which also contains a clause stating that t^e 
money received is to be applied to the account of the 
person from whom ^received, partakes of the double 
nature of a receipt and contract, and shows upon its 
^L fiice a liability to account, and an action upon it is not 

barred by the Statute of Limitations until four years 
^ have expired.— Ashley vs. Vischer, 24 Cal., p. 322. 

.4^ 5. Qenebally.— Note to Sec. 337, ante, referring to 

^IpJ^ Chipman vs. Morrill, 20 Cal., p. 130. 

.^ Within 840, Within one year: 

Vl* * 1. An action upon a statute for a penalty or forfeit- 

ure, where the action is given to an individual, or to 
an individual and the State, except where the statute 
imposing it prescribes a different limitation; 

2. An action upon a statute for a forfeiture or penalty 
to the people of this State; 

8. An action for libel, slander, assault, battery, or 
&lse imprisonment; 

4. An action against a Sheriff, or other officer, for 
the escape of a prisoner, arrested or imprisoned on 
civil process; 



^ 



^ 




Code op Civil Prooedubb. 195 

• tJpon a contract, obligation, or liability for the 
^^-J^ent of money incurred out of this State and not 
^^d upon a written contract. 



k\ 



Note. — First four guMi visions are based upon Stats. 
1850, p. 343. The fifth subdivision is new. 



Within six months: An action as^ainst an withjndx 

m ^ ^ months. 

Olllcer, or officer de factOj engaged in the collection of 
taxes: 

1. For money paid to any such officer under protest, 
or seized by such officer in his official capacity as a 
collector of taxes, and which, it is claimed, ought to 
berefimded; 

2. To recover any goods, wares, merchandise, or 
other property seized by any such officer in his official 
capacity as tax collector, or to recover the price or 
value of any goods, wares, merchandise, or other per- 
sonal property so seized, or for damages for the seizure, 
detention, sale of or injury to any goods, wares, mer- 
chandise, or other personal property seized, or for 
damages done to any person or property in making 
any such seizure. 

NoTB.-~Stats. 1859, p. 806. See Sec. 845, post. 

342. Actions on claims against a county, which Same, 
have been rejected by the Board of Supervisors, must 
be commenced within six months after the first rejec- 
tion thereof by such Board. 

843. An action for relief not hereinbefore provided Actions tbt 

relief not 

for must be commenced within four years after the t!5'*°" -^ 

•^ beforepro- 

cause of action shall have accrued. videdi&r. 

Note. — Stats. 1850, p. 843. In a suit to compel the 
execution of a deed, plaintiff alleg^ the property was 
purchased by him of C, and by an agreement with 
defendant was conveyed directly to him (defendant) as 
security for a debt, he to make recovery to plaintiff 
upon nayment of the debt. The debt was paid and the 
deed aemanded but refused. (See facts of case as to 
the time the statute was in motion.) It was held that 



196 Code op Civil Pbocedure. 

this character of case did Dot fall under Subdivision 1 
of Sec. 339, ante, but fell within the terms of this sec- 
tion.— Dodge vs. Clark, 17 Cal., p. 586. 

Where 344. In an action brought to recover a balance 

cause of ^ 

Jj^on due upon a mutual, open, and current account^ where 
MoooSt. there have been reciprocal demands between the* par- 
ties, the cause of action is deemed to have accrued 
from the time of the last item proved in the account 
on either side. 

Note.— stats. 1850, p. 343. 

1. Mutual Accounts.— Where there have been* 
reciprocal demands between the parties upon a mutual 
open and current account, the Statute of Limitations 
commences running at the time of the last item of the 
account proved on either side. — Norton vs. Larco, 30 
Cal., p. 126. 

2. Mutual Accouktb. — Mutual accounts are made 
up of matters of set-off, where there is an existing debt 
on the one side which constitutes a credit on the other, 
or where there is an express or implied underEtanding 
that mutual debts shall be satisfied or set oft pro tanio 
between the parties. — Id. 

3. "When Property received and credited 
MAKES Account mutual.— The defendants, being 
indebted to the plaintiffs on account, delivered to them 
an article of personal property, for which the latter 
gave the former credit at a specified valuation. Meld: 
that thereby the account between the parties became a 
mutual open and current account, consisting of recip- 
rocal demands between them. — Id. 

4. Striking of a Balance on accounts.— Where 
there are demands on each side, the striking of a bal- 
ance converts the set-ofif into a payment, and from that 
time the Statute of Limitations commences running. — 
Id. 

5. Mutual Accounts.— Until a balance is strack, 
a mutual account is open and current. — Id. 

6. A Patment does not make an Account 'Mu- 
tual. — A payment, whether it be made in money or 
of an article of personal property of a stipulated value, 
made on an account and intended as a payment, and 
not as a set-ofif pro tarUo^ does not make an account 
mutual .-"-Id. 

7. Payment on an Account.— VHiere money is 
delivered by one party to t)A other, and credited on 
account by him who received it, it \vill bo treated as 



Code of Civil Pbocbdube. 197 

intended as a payment, unless it is shown to have been 
delivered as a loan ; but not so with personal property, 
even though a value be affixed thereto. — Norton vs. 
Larc4>, 30 Cal., p. 127; see, also, Weatherwax vs. 
Gonsumnes V. M. Co., 17 Cal., p. 344. 

8. Generally.— See note to Sec. 839, ante.— Adams 
vs. Patterson, 35 Cal., p. 122. 

345. The limitations prescribed in this Chapter Actions by 

*■ the people 

apply to actions brought in the name of the State, or jgWootto 
for the benefit of the State, in the same manner as to ofthlf **°* 
actions by private parties. *'***'* 

Note.— stats. 1850, p. 343. 

346. An action to redeem a mortgage of real prop- Action to 

rodeem a 

erty, with or without an account of rents and profits, mortgage 
may be brouglit by the mortgagor or those claiming J^^^nd^ 
under him, against the mortgagee in possession, or ^^^^ 
those claiming under him, unless he or they have 
continuously maintained an adverse possession of the 
mortgaged premises for five years after breach of some 
condition of the mortgage. 

Note. — This section was added by Act of April Ist, 
1872. 

347. If there is more than one such mortgagor, Same, 

° ^ ' when there 

or more than one person claiming under a mortgagor, are two or 
some of whom are not entitled to maintain such an niort««««^ 
action under the provisions of this Chapter, any one 
of them who is entitled to maintain such an action 
may redeem therein a divided or undivided part of 
the mortgaged premises, according as his interest may 
appear and have an accounting, for a part of the rents 
and profits proportionate to his interest in the mort- 
gaged premises, on payment of a part of the mortgage 
money, bearing the same proportion to the whole of 
8uch money as the value of his divided or undivided 
interest in the premises bears to the whole of such 
premises. 

Note. — This section wal added by Act of April Ist, 
1S72. 



198 



Code of Civil Procedukb. 



When an 
action ia 
oom- 
maneed. 



Exception, 
where 
defendant 
is out of 
the SUte. 



CHAPTER IV. 

GENERAL PROVISIONS AS TO THE TIME OF COMMENCING 

ACTIONS, 

Sjcction 350. When an action is commenced. 

851. Exceptioni where defendant is out of the State. 

352. Exception, as to persons under disabilities. 

353. Provision where person entitled dies before limitation 

expires. 

854. In suits by aliens, time of war to be deducted. 

855. Provision where judgment has been reversed. 

356. Provision where action is stayed by injunction. 

357. Disability must exist when right of action accrued. 

358. When two or more disabilities exist, etc. 

359. This Title not a))p1icable to actions against Directors, 

etc. Limitations in such cases prescribed. 

360. Acknowledgment or new promise must be in writing. 

861. Limitation laws of oth^r States, effect of. 

862. Existing causes of action not affected. 
363. WoJ"*! "action " construed, how. 

350. An action is commenced, witliin the meaning 
of this Title, when the complaint is filed. 

Note.— stats. 1850, p. 343. To prevent the bar of 
the Statute of Limitations, no other proceeding is nec- 
essary except filing the complaint, when, for all pur- 
poses of the statute, the action is commenced. The 
issuance of summons is not nocessar}' to the commence- 
ment of the action. — Sharp vs. Maguire, 19 Cal., p. 
577. See, also, Allen vs. Marshall, 34 Cal., p. 166; 
Pimental vs. San Francisco, 21 Cal., p. 351; Adams 
vs. Patterson, 35 Cal., p. 122. 

361. If, when the cause of action accrues against 
a person, he is out of the State, the action may be 
commenced within the term herein limited, after his 
return to the State, and if, after tlie cause of action 
accrues, he departs from the State, the time of his 
absence is not part of the time limited for the corh- 
mencement of the action. 

Note.— Stats. 1850, p. 343. See Palmer vs. Shaw, 
16 Cal., p. d3; Nelson vs. Nelson, 6 Cal., p. 430. 



U-'^.V* \ 



r 



^ 



\ 



Code op Civil Procbdurb. ' 199 

352. If a person entitled to hnns an action, men- Ezooption. 
tioned in Chapter III of this Title, be, at the time the JgJJij^f^i 
cause of action accrued, either: 

1. Within the age of majority; or, 

2. Insane; or, 

8. Imprisoned on a criminal charge, or in execution 
under the sentence of a criminal Court for a term less 
than for life; or, 

4. A married woman, and her husband be a neces- 
sary party with her in commencing such action: 
— ^The time of such disability is not a part of the time 
Bmited for the commencement of the action. 

Note.— stats. 1863, p. 325. 

1. Action to set aside Deed of insane man.— 
If a person, while insane, is fraudulently induced to 
execute a conveyance of his property to another, the 
Statute of Limitations wiU not commence running 
against the grantor's right to commence an action to 
set aside the deed until he recovers his reason and dis- 
covers what he has done. — Crowther vs. Bowlandson, 
27 Cal., p. 376. 

2. Mabbied Women. — The statute runs against a 
married woman in all those actions to which her hus- 
band is not a necessary party with her, in commenc- 
ing the action the same as other parties. — Wilson vs. 
Wilson, 36 Cal., p. 447. 

3* Sepabate Pbopebtt. — Actions may be brought 
by the wife when they concern her separate property, 
or are against her husband, etc. — Wilson vs. Wilson, 
36 Gal., p. 447. 

353. If a person entitled to bring an action die Provision 

where per- 

before tfce expiration of the time limited for the com- Jg^®£j*J.^ 
mencement thereof and the cause of action survive, ^^^^1^^ 
an action may be commenced by his representatives, 
after the expiration of that time, and within six months 
from his death. If a person against whom an action 
may be brought die^ before the expiration of the time 
limited for the commencement thereof, and the cause 
of action survive, an action may be commenced 
against his representatives, after the expiration of that 



200 Cobb oe Civil Pbocbdhue. 

time, and within one year after the issuing of letters 
testamentary or of administration. 

Note.— Stats. 1860, p. 343. 

1. ** If a PSB80N AQAINBT WHOM AN ACTlOlT MAT 

BE BROUGHT DIE," ETC.— See Smith vs. Hall, 11> 
Cal., p. 85. 

2. KSTATEA OF DECEASED PEK80K6— AdMINISTBA- 

TION NOT GEAKTED.— A note due shortly after the 
death of the maker, in 1852, letters of administration 
were issued in 1856, and no notice to creditors having 
heen published, the note was presented to the adminis- 
trator in 1859 and rejected. Suit was brought on the 
claim immediately after rejection. Held: the note 
was not barred by the Statute of Limitations. — Smith 
vs. Hall, 19 Cal., p. 86. The Statute of Limitations 
does not begin to run when no administration exists on 
decedent's estate at the time the cause of action ac- 
crued.— Douglada vs. De la Guerra, 10 Cal., p. 386; 
Smith vs. Hall, 19 Cal., p. 85; see, also, Soto vs. 
Kroder, 19 Cal., p. 87. 

insQitsby 354. When a person is an alien subject, or citizen 
of war to be of a countrv at war with the United States, the time 
of the continuance of the war is not part of the period 
limited for the commencement of the action. 

Note.— stats. 1850, p. 343. 

PiovisioB 8S5. If an action is commenced within the time 

^d«meDt prescribed therefor, and a judgment therein for the 

reversed, plaintiff be reversed on appeal, the plaintiff, or if he 

die and the cause of action survive, his representatives, 

may commence a new action within one year after the 

reversal. 

Note.— StaU. 1850, p. 343. ^ 

Provifien 356. When the commencement of an action is 
action is Stayed by injunction or statutory prohibition, the time 
iitfanotioii. of the coutinuancc of the injunction or prohibition is 

not part of the time limited for the commencement of 

the action. , 

Note.— stats. 1850, p. 343.. , 

Disability 357. No pcrson cau avail himself of a disability, 
when right uulcss it cxistcd when his rifi^ht of action accrued. 

of action ^ 

•<»™«^ Note.— Stots. 1850, p. 343. 



Code op Ch'^il Procbdubb. 



201 



This Title 
not applica- 
ble to 
actions 
a^inst 
Directors, 
etc. 

Limita- 
tions in 
such cases 
prescribed. 



358. When two or more disabilities coexist at the wben two 

or more 

time the right of action accrues, the limitation does J^t^/eti* 
not attach until they are removed. 

Note,— Stats. 1850, p. 343. 

359. This title does not aifect actions against 
Directors or stockholders of a corporation, to recover a 
penalty or forfeiture imposed, or to enforce a liability 
created by law; but such actions must be brought 
within three years after the discovery by the aggrieved 
party of the fiicts upon which the penalty or forfeiture 
attached, or the liability was created. 

Note.— stats. 1850, p. 343. 

360. No acknowledgment or promise is sufficient Acknowi- 

o A edgment or 

evidence of a new or continuing contract, by which to p®^igo 
take the case out of the operation of this Title, unless writing"* 
the same is contained in some writing, signed by the 
party to be charged thereby. 

Note.— Stats. 1850, p. 343. 

1. New Promise to be in Wbiting. — At an early 
period after the passage of the English Statute of Lim- 
itations (21 James I, Chap. 16), an impression prevailed 
that the statute was not to be favored; and, accord- 
ingly, a very slight acknowledgment, proved by as 
slight testimony, was permitted to overcome the stat- 
ute. — Parson's Mercantile Law, p. 233; 10 Barb., S. C, 
p. 568. But tlie modern cases upon this subject have 
established the rule that to take a case out of the opera- 
tion of the statutes, there must have been cither an 
express promise to pay, or an admission of the debt 
in terms so distinct as that a promise might reasonably 
be inferred therefrom. If, however, the admission was 
accompanied by qualifying words, then it would not 
amount to a promise. — Chitty on Con., pp. 712-714. 
The object of our statute was to change a rule of evi- 
dence, and now to require written whore verbal testi- 
mony was formerly sufficient. The matter to be proved 
is the acknowledgment or promise, and the only com- 
petent evidence is a writing signed by the party to be 
charged. But whether the acknowledgment or prom- 
ise when, when proved^! be sufficient to take the case out 



26 — Vol-. I* 



202 Code of Civil Procbdurb. 

of the operation of the Act, is left to depend upon reason 
and authority, as it did before.— 28 £ng. G. I. R., p. 
82; Fairbanks vs. Dawson, Cal., p. 91. See, also, 
Barron vs. Kennedy, 17 Cal., p. 574, commenting on 
Fairbanks vs. Dawson, 9 Gal., p. 89; and as to effect of 
part payments and proof of acknowledgment of debt, 
see these cases commented on and Fairbanks vs. Daw- 
son, supra, affirmed, in Pena vs. Vance, p. 142. See, 
further, Heinlin vs. Castro, 22 Cal., p. 100; Porter vs. 
Elam, 25 Cal., p. 291. 

2. Pbomise must bk in Writing. — Where a mem- 
orandum book was kept by plaintiff and a pass book 
by defendant, and these books were compared, the 
account found to be correct, and so acknowledged 
orally by the defendant, yet it did not take the case 
out of the statute as defined by this section. — Weather- 
wax vs. Cosumnes V. M. Co., 17 Cal., p. 844. The 
party to be charged must sign his name to the writing. 
Pena vs. Vance, 21 Cal., p. 142. 

8. Effect of Statute of Limitations.— The Stat- 
ute of Limitations does not extinguish a debt nor raise 
a presumption of its payment. It only bars the remedy, 
and thus becomes a statute of repose. — ^McCormick vs. 
Brown, 36 Cal., p. 180. 

4. New Promibe.— Nature of Action on Cause 
I that 18 BARRED BY THE STATUTE. — When a creditor 

sues after the statute has run upon the original contract, 
his cause of action is not founded on the original con- 
tract, but on the new promise; the moral obligation 
arising upon the original contract being a sufficient 
consideration for the new promise. — McCormick vs. 
Brown, 36 Cal., p. 180. 

5. Nature of the Contract resttltino from 

MAKING the statutory ACKNOWLEDGMENT ON NEW 

Promise.— Under the Statute of Limitations there are 
two ultimate facts that may be proved in the mode 
therein prescribed — a continuing contract, and a new 
contract. Tlie statutory acknowledgment or promise, 
if made while the original contract is a subsisting lis- 
bility, establishes a continuing contract; while, if made 
after the bar of the statute, a new contract is created.— 
McCormick vs. Brown, 36 Cal., p. 180. 

6. Limitation of Action on new Promise to pay 
Judgment. — An action on a new promise to pay a 
judgment, so as to avoid the bar of the statute, must 
be brought within four years from the making of the 
new promise.— McCormick vs. Brown, 3^ Cal., p. 180. 

7. New Promise necessary to support Action 
ON cause that is barred.— a creditor cannot re- 



n 



Code op Civil Procedure. 



203 



cover after the statute has run upon the original con- 
tract or obligation, without a new promise. — McCor- 
mick vs. Brown, 36 Cal., p. 180. 

8. Natubk 01" NEW Promise.— The new promise 
may be either express or implied. An express promise 
can only be established by producing the promise itself, 
in the form prescribed by this section ; while an implied 
promise can only be established by the production in 
like form of the acknowledgment prescribed in this 
section.— McCormick vs. Brown, 36 Cal., p. 180. 

9. Nature and scope or Acknowledgment. — 
An acknowledgment, within the statute, to support an 
implied promise, must be a direct, distinct, unqualified, 
and unconditional admission of the debt which the 
party is liable and willing to pay. Such acknowledg- 
ment cannot be deduced from an ofier or promise to 
pay a part of the debt, or the whole debt in a particu- 
lar manner, or at a specified time, or upon specified 
conditions. — McCormick vs. Brown, 36 Cal., p. 180. 

10. Terms of express Promise.— An express 
promise, to be available to the creditor, must be either 
direct, certain, and unconditionally a specified part of 
the debt, or a like offer, upon specified conditions as to 
either time or manner, or both, to pay the whole or 
some part of the debt, or a direct conditional promise 
to pay the whole or a specified part of the debt; but in 
case of such offer or conditional promise, the creditor 
can only recover by showing an acceptance by him of 
the offer as made, or a performance on his part of the 
prescribed conditions of the promise. — McCormick vs. 
Brown, 36 Cal., p. 180. 

11. New Promise Generally. — See Farrell vs. 
Palmer, 36 Cal., p. 187; also, Chabot vs. Tucker, 39 
Cal., p. 434, and authorities there cited. 



361. When a cause of action has arisen in another Limitation 

IftWfl of 

State, or in a foreign country, and by the laws thereof other 
an action thereon cannot there be maintained against «ff®<^of. 
a person by reason of the lapse of time, an action 
thei-eon shall not be maintained against him in this 
State, except in iavor of one who has been a citizen 
of this State, and who has held the cause of action 
from the time it accrued. 

Note.— Stats. 1852, p. 161; Nelson vs. Nelson, 6 
Cal., p. 430. 



204 Code of Civil Procedure. 

ExiftiDff 362. This Title does not extend to actions already 

oaases of J^ 

affeofed*^*' Commenced, nor to cases where the time prescribed in 
any existing statute for acquiring a right or barring a 
remedy has fully run, but the laws now in force are 
applicable to such actions and cases, and are repealed 
subject to the provisions of this section. 

Note. — See, also, Sees. 5, 9, ante. 

Word 363. The word " action " as used in this Title is to 

" action »» 

eonstraod, be construcd, whcncver it is necessary so to do, as in- 
cluding a special proceeding of a civil nature. 

Note. — Thb section was added by Act of April 1st, 
1872. . 



TITLE III. 

OF THE PARTIES TO CIVIL ACTIONS. 

Section 367. Action to be in name of party in interest. 

368. Assignment of thing in action not to pr^udice defense. 
869. Executor, trustee, etc., may sue without joining the 
persons beneficially interested. 

370. When a married woman is a party, actions by and 

against. 

371. "Wife may defend, when. 

372. Infant to appear by guardian. 

373. Guardian, how appointed. 

374. Unmarried female may sue for her own seduction. 

375. Father, etc., may sue for seduction of daughter, etc. 

376. Father, etc., may sue for injury or death of child. 

377. "When representatives may sue for death of one caused 

by the wrongful act of another. 

378. "Who may be joined as plaintiffs. 

379. "Who may be joined as defendants. 

380. Parties defendant in an action to determine conflicting 

claims to real property. 

381. Parties holding title under a common source, when 

may join. 
882. Parties in interest, when to be joined. "When one or 

more may sue or defend for the whole. 
383. Plaintiff may sue in one action the different parties to 

commercial paper. 



namo 
in 



Code op Civil Procbburb, 206 

SxcnoK 384. Tenants in common, etc., may sever in bringing or 

defending actions. 

385. Action, when not to abate by death, manlage, or other 

disability.. Proceedings in such case. 

386. Another person may be substituted for the defendant. 
887. Intervention, when it takes place, and how made. 

388. Associates may be sued by name of association. 

389. Court, when to decide controversy or to order other 

parties to be brought in. 

367, (§ 4.) Every action must be prosecuted in Action to 
the name of the real party in interest, except as pro- il^l^ * 
vided in Section 369. 

NoTK.— Stats. 1864, p. 29. 

1. AsBiONEK OP A JuDGMEiiT. — A judgment is not 
negotiable, like a bill of exchange by the law merchant, 
but is a mere chose in action, vesting an equitable right 
in the assignee thereof to the proceed^ of it, with the 
right to the usual and legal means of collecting the 
amount due; and between two bona fide purchasers of a 
judgment the purchaser first in time is prior in right. — 
Pore vs. Manlove, 18 Cal., p. 436. 

2. Akbwkr, how framed.— See Abb. Forms, Vol. 2, 
p. 81; Vooh's N. Y. Code, p. 149, note. Wedder- 
epoon vs. Rogers, 82 Cal., p. 569. 

3. Real fabtt in interest.— Action must be in 
name of real party in interest. A stranger to a trans- 
action cannot maintain a suit. — Chenery vs. Palmer, 5 
Cal., p. 133. 

4. Real partt in interest.— The possession of a 
note, whether obtained before or after maturity, is 
prima facie evidence of ownership. The averment 
of a valuable consideration for the transfer to the 
plaintiff is genei-ally immaterial. The transfer, with 
or without value, confers upon the holder the right of 
action ; and a consideration need not be proved unless 
a defense is interposed which would otherwise preclude 
a recovery. — McCann vs. Lewis, 9 Cal., p. 246; James 
VB. Chalmers, 5 Sand., p. 52, and 2 Selden, p. 209. 
And in such a cas(3 the objection that the plaintifiT is 
not the owner of the note is unavailing. His right to 
maintain action cannot be questioned, except the de- 
fendant pleads payment to, or ofi&et against, the party 
alleged to be the true owner. — Price vs. Dunlap, 5 Cal., 
p. 483; Gushee vs. Leavitt, 5 Cal., p. 160. 

5. Real party in interest, whether the re- 
lief SOUGHT IB LEGAL OR EQUITABLE.— We havo 

but one form of action for the enforcement of private 



206 CSoDB OF Civil Procedure. 

rights, and, with certain exceptions, the Code requires 
that every action shall be prosecuted in the name of 
the real party in interest. Oases of assignment are not 
included in these exceptions (see Sec. 369); and in the 
form of the remedy no distinction exists between legal 
and equitable rights. In this respect the two classes of 
rights are placed precisely upon the same footing, and 
must undergo the same remedial process for their en- 
forcement.— Wiggins vs. McDonald, 18 Oal., p. 127. 

6. Sbvsral Obligzks IK ▲ Bond.— A bond given 
to all the obligees by name, and using no words ex- 
pressing a several obligation, yet necessarily creates a 
several liability, the design of it being to secure each 
and all of the obligees irom damages or ii^uiy. In 
such cases, however, under the common law practice, 
it has been held that the suit was properly brought in 
the name of the several obligees; and the question was 
said to be purely technical, to wit: with whom was the 
contract made? the obligation being technically to both 
to pay whatever damage might be sustained by either, 
though when recovered the money would go to the 
party who sustained the injuiy. Whatever the rule 
may be under the old system, we think that under our 
system the right of action is in the party sustaining the 
injury; for, on a recoveiy, the other party, if entitled 
to receive the money at all, if judgment were had in the 
name of both, would hold it by right of, and as a trustee 
for, the other; and our Practice Act, for convenience, 
has given the right to sue to the party, beneficially enti- 
tled to the fruits of the action. — Summers vs. Parish, 
10 Cal., p. 347; Prader vs. Purkett, 13 CaL, p. 591. 

7. In a Joint Bond bach party may sub for 
his several damages, notwithstanding the bond is made 
payable to the obligees jointly. — Lally vs. Wise, 28 
Gal., p. 539. See, also, Browner vs. Davis, 15 Gal., 
p. 11. 

8. Party beneficially interested in damages 
MAY sub on Bond given to Ovficbr, State, or 
GoRPORATioN. — Formerly, where a bond was given to 
an officer. State, or corporation, suit had to be brought 
in the name of the party holding the legal title, for the 
benefit of the persons interested; but our statute has 
introduced a new rule, and, by the provisions of the 
Practice Act, the suit must be prosecuted in the name 
of the real party in interest— i. e., the party beneficially 
interested in the damages.— Baker vs. Bartol, 7 Gal.| 
p. 551; Lally vs. Wise, 28 Gal., p. 640; Warmouth vs. 
Hatch, 83 Gal., p. 121. A plaintiff being the real 
party «in interest has a right to sue upon a bond, though 



Code of Civil Procedure, 207 

made payable to the people of the State.—Baker ts. 
Bartol, 7 Cal., p. 551. 

9. AssiairsKS. — Where A. owes B. and B. owes C, 
and A. and B., without consulting C, agree between 
themselyes that A. shall pay C. what A. owes to B., it 
was held that an action could not be maintained by C. 
against A. for want of priyity. — ^McLaren ts. Hutch- 
inson, 18 Gal., p. 80; but this was questioned and de- 
clared open for further investigation in Lewis vs. 
Covillaud, 21 Cal., p. 189, and it was also held that 
where A., B., and C. agree among themselves that A. 
shall be liable to C. for a debt due from B. to C, the 
assignee of O. could sue in his own name for the debt 
due from A. — McLaren vs. Hutchinson, 22 Cal., p. 
100, and cases therein cited. 

10. Action ot Ejectment— Legal title to be 
BEPRE8ENTED. — In an action of ejectment the plaintiff 
suing for possession must have or represent the legal 
title — an equitable title is not sufficient. The action 
must be in the name of the party holding the legal 
title. — Emeric vs. Penniman, 26 Cal., p. 128; see, also, 
Estrada vs. Murphy, 19 Cal., p. 272; Clark vs. Lock- 
wood, 21 Cal., p. 222. 

11. Action by Sheriff against pabtt owing 
Attachment Debtor. — Where an attachment was 
issued by the Court of first instance against the prop- 
erty of a debtor, and the Sheriff had executed the 
same, and was ordered to make the amount due the 
creditor out of the goods, chattels, and property of the 
debtor. Held: that the Sheriff could not maintain an 
action in his own name to recover a sum owing to the 
attachment debtor by a third person for goods sold and 
delivered. — Sublette vs. Melhado, 1 Cal., p. 104. 

12. Sheriff not responsible when goods re- 
leased FROM ATTACHMENT ON SUFFICIENT UNDER- 
TAKING. — ^An undertaking given to a Sheriff to pro- 
cure a release of goods attached is for the benefit of the 
plaintiff, notwithstanding it is in the name of the 
Sheriff, and the plaintiff may sue on it; and if the 
Sheriff takes a sufilcient statutory undertaking, he has 
no further responsibility. — Curiae vs. Packard, 29 Cal., 
p. 191. 

13. Party procuring Patent for Land who 

HAS NO RIGHT THERETO — WhO MAT MAINTAIN AC- 
TION against. — If the United States confirm a grant 
of land, and issue a patent therefor to a party who did 
not own the grant and had no right to the patent, the 
patentee can only hold the legal title in trust for the 
real parties in interest; and as to who are proper par- 



208 Code of Civil Procedure. 

ties in an action for affirmative relief see facts of case 
in Salmon vs. Symonde, 80 OaL, p. 306, and authori- 
ties there cited. See, also, Sec. 878. 

14. A PARTY PLAnCTIfT WHO WAS AgEKT FOK 
DlCFEKDANTS IN THE TBAN8ACTI0W COMPLAINED OF. — 

The fact that the owner of a ehip lost while being 
towed to sea was the agent for the owners of the steam- 
tug docs not relieve the latter from any of the obliga- 
tions under which they contract with others. — Martin 
"White vs. Mary Ann, 6 Cal., p. 462. 

15. Corporations as Plaintiffs.— The allegation 
that plaintiff is a corporation under the laws of the 
State is sufficient to establish the legal capacity to 
sue.— Cal# Nav. Co. vs. Wright, 6 Cal., p. 258. 

16. Assignable iNSTRUsreNTS. — A contract not to 
run boats on a certain line of travel, and on failure to 
comply with such contract to pay |15,000, is an instru- 
ment in writing for the payment of money, and assign- 
able by our laws. — Cal. Nav. Co. vs. "Wright, 6 Cal., 
p. 258. 

17. What may be Assigned — Assignees— Ac- 
ceptance OF Orders. — ^Funds in the hands, or to 
come into the hands, of the third person, are assignable, 
and the drawees having given an order and received 
notice of its acceptance are liable to the payees, with- 
out any other express promise to pay. — Pope vs. Huth, 

' 14 Cal., p. 407, and cases cited. 

18. Acceptance of Orders.— "Where an order is 
drawn for an amount due, it is a prima focie assign- 
ment of the debt due. Even if it was only for part 
of a debt, no one could make the objection but the 
defendants. — McEwen vs. Johnson, 7 Cal., p. 260; 
Wheatley vs. Strobe, 12 id., p. 97. It would seem 
that a debtor may accept orders in favor of different 
persons, for different portions of the debt, and those 
accepted orders will bind all parties. — McEwen vs. 
Johnson, 7 Cal., p. 260. 

19. Assignment of Debt by parcels.— And so 
debts due a party may by him be split up and assigned 
in parcels, and the debtor sul]gect«d to costs of more 
suits that was in the first place contemplated, if such 
debtor consents thereto. — Mansion vs. Pioche, 8 Cal., 
p. 536. 

20. Agreement not to defend suit Assign- 
able. — A. agrees to pay a certain sum of money to 
B. if B. will cease to defend a certain suit. HeUU 
such an agreement is assignable, and gives the assignee 
a right to sue in his own name.— Gray vs. Garrison, 9 
Cal., p. 325. 



Code of CiyiL Procedure. 209 

21. AssiONABLB Contract. — A contract leasing a 
stallion for a certain time, and with a right reserved to 
have nine mares covered by the stud during the con- 
tinuance of the lease, may be assigned, and carries 
therewith all the benefits arising out of the contract. 
But the assignee must g^ve notice to the lessee of the 
assignment. — Doll vs. Anderson, 27 Cal., p. 248. 

22. OONTINGKNT KIOHTS AND INTERESTS ARE NOT 

ORDINARILY ASSIGNABLE at law, but they are in 
equity. Assignments of such rights and interests, in 
being, are upheld and enforced by Courts of equity. 
And more than this; these Courts support and give 
effect to assignments of things which have no present 
actual existence, but rest in mere possibility; not as a 
present positive transfer operative in presenti, but as a 
present contract, to take effect and attach as soon as the 
thing comes in esse, — Bibend vs. London and Liver- 
pool Fire and Life Ins. Co., 80 Cal., p. 78; Pierce 
vs. Robinson, 13 id., p. 121; 2 Story's Eq., Sec. 1040; 
Mitchell vs. Winslow, 2 Story, Sec. 638. 

23. Assignment of Policy of Insurance to one 

HAVING NO INTKREST IN PROPERTY INSURED.— See 

Bibend vs. L. & L. F. & L. Ins. Co., 30 Cal., p. 
89; see, also. Civil Code, Sees. 2546-2557. 

24. Assessment for Street Impkoyementb As- 
signable. — An assessment for street improvements 
against an owner of property is assignable by the con- 
tractor. — Cochran vs. Collins, 29 Cal., p. 129. And a 
contract for improving a street may be assigned. — See 
Taylor vs. Palmer, 31 Cal., p. 248, and cases cited. 

25. Suits by Assignees.— Where A. was indebted 
to a company, and the company indebted to B., if all 
parties agreed that A. should pay his debt to B., it is 
an equitable assignment, and the assignee can sue for 
the amount of the assignment. — Wiggins vs. McDon- 
ald, 18 Cal., p. 126. An appropriation of the fund is 
all that is necessary, and any act amounting to such an 
appropriation was sufficient to constitute an equitable 
assignment of the debt. — Id. 

26. Assignment of a Judgment Assignment of 
Debt on which Judgment was obtained.— It mat- 
ters not if an assignment of a judgment is made, and 
the judgment is invalid for want of jurisdiction, for the 
assignment of a judgment so void is an assignment of 
the debt for which it was obtained. — Brown vs. Scott, 
25 Cal., p. 196. 

27. Cause of Action Assignable.— Whether a 



27— Vol.. I. 



210 . Code of Civil Procedure. 

cause of action is assignable depends mainly apon 
whether, in case of the death of the assignor, it would 
descend to his representatives, — Zabriskie ys. Smith, 
13 N. Y. (3 Kern.), p. 322; McKee vs. Judd, 12 N. Y. 
(2 Kern.), p. 622; Dininny vs. Fay, 38 Barb., p. 18; 
Fried vs. New York Central R. R. Co., 26 How., p. 
285; People ex rel. Stanton vs. Tioga Common Pleas, 
19 Wend., p. 73. 

28. Suit by Absigkee op Psbbokal Pbopbkty.— 
Where personal property is wrongfully detained, the 
owner may assign his title thereto, and the assignee 
may maintain an action therefor. — Cass vs. The N. Y. 
and N. H. R. R. Co., 1 £. D. Smith, p. 622; McGinn 
vs. Warden, 3 id., p. 365; Hall vs. Robinson, 2 Corn- 
stock, p. 295; The Brig Sarah Ann, 2 Summer., p. 211; 
2 Hilliard on Torts, p. 275; Lazard vs. Wheeler, 22 
Cal., p. 142. 

29. A Right op Action poe the wbokgpul tab- 

INQ AKD CONVBBSION OP PeBSONAL PbOPEBTY IB 

Abbigkablb, and under the provisions of the Code the 
assignee can recover upon the same in his own name. — 
McKee vs. Judd, 2 Kernan, p. 622; Hoyt vs. Thomp- 
son, 1 Selden, p. 347; see, also, North vs. Turner, 9 
Serg. & Rawle, p. 244; Lazard vs. Wheeler, 22 Cal., 
p. 142. 

30. A Damage caused by Tbespabb ov Land 
MAY BE AfiBiGNABLE.— Moore VS. Massiui, 32 Cal., p. 
690. 

31. Catjbeb op Actiok not Assignable.-— a judg- 
ment in an action for a non-assignable tort becomes a 
debt, but the recovery of judgment does not change 
the character of the debt so as to make it assignable- 
Lawrence vs. Martin, 22 Cal., p. 173. 

32. Partneb cannot Assign Claim against hib 
Fibm; Assignee cannot maintain Action thebeon. 
A partner who has a claim against the firm of which 
he is a member, and who cannot therefore sue the firm 
at law, cannot confer upon his assignee a right to main- 
tain such an action. If he could avoid the disability 
by assignment, it would defeat all the substantial rea- 
sons upon which the rule is founded. — Bullard vs. Kin- 
ney, 10 Cal., p. 63. 

33. Vendob's Lien not Assignable.— A vendor's 
lien cannot be assigned. — Baum vs. Grigsby, 21 Cal., 
p. 172, affirmed Lewis vs. Covillaud, 21 Cal., p. 178; 
Williams vs. Young, 21 Cal., p. 227. 

84. A cause op Action abising out op a Tobt 

IB NOT Assignable.— Oliver vs. Walsh, 6 Cal., p. 458. 

86. An AfisiGNMSNT op an Account by Indobsi- 



Code of Civil Procedure. 211 

HKNT OF THE WORD "ASSIGNED," signed by the 
owner of the account, is sufficient. — Ryan vs. Maddux, 
6 Ca].." p. 247. 

36. Plaintiff designated by Name of Copart- 
nership Firm. — A complaint, which contains no other 
designation of the party plaintiff than the name of a 
partnership firm, is defective. — Gilman vs. Cosgrove, 
22 Cal., p. 356. 

37. Set-off Judgment not Defeated as a Set- 
off BY Assignment. — Where, in the same action, 
two judgments were entered, one for the plaintiff for 
a certain sura, and one for the defendant for a less sum: 
JBdd: that defendant has a right to set off his judgment, 
pro tantOj against that of the plamtiff, and that this 
right could not be defeated by any assignment by 
plaintiff of his judgment before application for the set- 
off. — Porter and Allen vb« Liscom, 22 Cal., p. 430. 

38. Promise to Third Party.— Where the obliga- 
tion with which it is sought to affict defendants per- 
sonally arises out of an alleged promise given by them 
to W. and A. Elder, of whom they bought the land 
mortgaged by Pangbum to plaintiff, that they would 
pay a portidn of the purcha&e money, equal to the 
amount due or to grow duo upon the note given by 
Pangbum to plaintiff, and secured by said mortgage, 
this is not a promise to pay the debt of another, nor 
to pay the Pangbum note, but an original promise by 
them to the Elders to pay their own debt to them, by 
paying a certain amount of money to plaintiff. If such 
promise was given, plaintiff could recover upon it as the 
party beneficially interested. — Wormouth vs. Hatch, 33 
Cal., p. 121. 

89. In whose Name Writ of Mandate must be 
applied for. — An application for the writ of mandate 
must be prosecuted in the name of the real party in 
interest, and if the name of the people is used and the 
people have no interest, and the relator alone is inter- 
ested, the writ will be denied. — People vs. Pacheco^ 29 
Cal., p. 210. 

40. Who are Proper Parties in an Action fob 
Partition.— Gates vs. Salmon, 35 Cal., p. 576. 

41. Suit by Assignee of a Claim.— An absolute 
assignment of a demand enables the assignee to sue 
for and recover the whole debt, even though by the 
Assignments he acquired only a portion of the de- 
mand. — Gradwohl vs. Harris, 29 Cal., p. 150. 

42. Intervention by Part Owner of Claim 
SUED on.— If the owner of a claim assigns it abso- 
lutely, retaining, however, an interest in it, he may 



212 Code of Civil Procedure. 

intervene to protect h\» interests in an action brought 
by the assignee to collect the same; and if he does not 
intervene he is bound by the judgment. — Gradwohl vs. 
Hatch, 29 Cal., p. 150. 

ABBign- 368. (§ 6.) In the case of an assignment of a 

thing in thinff in action, the action by the assisrnee is without 

action not o > j o 

S&F«Ma!^°* prejudice to any set-off, or other defense existing at 
the time of, or before, notice of the assignment; but 
this section docs not apply to a negotiable promissory 
note or bill of exchange, ti*ansferred in good feith, and 
upon good consideration, before maturity. 

Note. — 1. Purchabsrs and Assigniseb op Judq- 
MKKTB. — A purchaser of a judgment is not bound to 
inquire into latent equities existing in the hands of third 
parties, and is not affected as to third parties by frauds of 
which he had neither actual nor constructive notice. — 
"Wright vs. Levy, 12 Cal., p. 257. The rule ccweai 
emptor applies as to the right of third parties in the 
purchase of a judgment, as well as in the purchase of 
other personal property. — Mitchell vs. Hockett, 25 
Cal., p. 544. A purchaser of a judgment takes it sub- 
ject to all set-offs existing at time of purchase. — Hobbs 
vs. Duff, 23 Cal., p. 696; Porter vs. Liscom, 22 Cal., 
p. 430; McCabe vs. Gray, 20 Cal., p. 509; Fore vs. 
Manlove, 18 Cal., p. 436. 

2. Payment by a Garnishee.— If the judgment 
creditor assigns the judgment, and the judgment 
debtor, without notice of the assignment, afterwards 
pays the same voluntarily to the Sheriff, by reason of 
the service of garnit^hee process upon him, the rights of 
the assignee are not affected, and he may still enforce 
the judgment. — Brown vs. Ay res, 33 Cal., p. 525. 

8. Promissory Notes Assigned as Collateral 
Security. — A negotiable promissory note, not yet 
due, and taken bona fide as collateral security for a 
previous debt, is not subject to a defense existing^ at 
the date of the assignment between the original parties. 
Payne vs. Benslcy, 8 Cal., p. 260; Naglee vs. Lyman, 
14 Cal., p. 450; Robinson vs. Smith, 14 Cal., p. 94. 
Where there is any change in the legal rights of the 
parties in relation to the antecedent debt, the creditor 
taking the collateral security is considered as a holder 
for value, and the paper not subject to equities existing 
between the original parties. — Naglee vs. Lyman, 14 
Cal., p. 454. But where A. gave his note to B., in 
order that B. might raise money on it as collateral 



Code op Civil Puocbdurk. 213 

security, and B. raised the money thereon, and then 
took up the note from the pledgees, it was held that B. 
could not sue on the note, as it had answered all the 
purposes for which it was p^iven; and an assignee of B. 
taking the note after maturity, and upon no new con- 
sideration, took it subject to the same defense. — Cogh- 
lin Ys. May, 17 Cal., p. 515. 

4. Notes Assigned akd Indorsed after matu- 
rity. — An indorsee, afler maturity, takes the same 
interest that the indorser had, and his claim is subject 
to the paine defense, — Folsom vs. Bartlett, 2 Cal., p. 
163. If a party takes a note after its maturity, he takes 
it subject to all subsisting equities between the maker 
and the payee, but not subject to such as subsisted be- 
tween the maker and any intermediate holder. — Vinton 
V8. Crowe, 4 Cal., p. 309. 

5. Transfer of Check after dishonor.-— As to 
all persons except a bona fide holder without notice, a 
check given for a gambling debt is void. If it was 
presented to the bank, and payment refused, and then it 
was transferred, afler dishonor, the assignee takes it 
subject to all the defenses to which it was subject in the 
hands of the first holder. — Fuller vs. .Hutchings, 10 
Cal., p. 526. 

6. Assignment of Judgment.— The assignee of 
the judgment is only the holder of an equity, with the 
right to use the judgment and the name of the plaintiff 
to enforce it, and stands in the shoes of the assignor as 
to all defenses which existed against the judgment be- 
tween the parties to it. It is like a note assigned after 
due. — Wright & Co. vs. Levy, 12 Cal., p. 257; Northam 
vs. Gordon, 1:3 Cal., p. 255; Hobb vs. Duff, id., p. 596. 

7. What Assignments Equity upholds.— Equity 
upholds assignments, not only of choses in action, but 
of contingent interests and expectations, and of things 
which have no actual existence, but vest in possibility. 
See note to preceding section and the cases there cited 
of Pierce vs. Bobinson, 13 Cal., p. 123; Bibend vs. L. 
and L. Ins. Co., 30 Cal., p. 78; Pope vs. Huth, 14 Cal., 
p. 403. 

8. Assigned Account. — As to defense to assigned 
account, see Duff vs. Hobbs, 19 Cal., p. 646. 

9. Fraudulent Assignor.— A fraudulent assignor 
cannot sue to compel a reassignment, etc. — See Gregory 
vs. Haworth, 25 Cal., p. 653. 

10. Notice of Assignment.- As to when notice of 
assignment is not necessary, see Morgan vs. Lowe, 5 
Cal., p. 526. 

11. Abbionbi of JuDGUXNT.'An assignee of a 



I 



214 Code of Civil Procedure. 

judgment and of the Sheriff's certificate of sale there- 
under, stands in the same position as his assignor when 
the judgment has been reversed, and the sale will be 
set aside, where no loss will occur to the assignee. — 
Reynolds vs. Harris, 14 Cal., p. 667. 

Bxeentor, 360. (§ 6.) An executor or administrator, or trus- 

tnuteo, 

»M wTthout *^® ^^ ^^ express trust, or a pei'son expressly autbor- 

JenwM*^* ized by statute, may sue without joining with him the 

ntflJeSodL persons for whose benefit the action is prosecuted. A 

person with whom, or in whose name, a contract is 

made for the benefit of another, is a trustee of an 

express trust, within the meaning of this section. 

Note.— Stats. 1854, p. 84. 

1. An Executor or Admin istra.tor may sue in 
his own name as yxccutor or administrator. — Curtis vs. 
Herrich, 14 Cal.^p. 117; Teschemaker vs. Thompson, 
18 Cal., p. 11; Halleck vs. Mixer, 16 Cal., p. 579; 
Curtis vs. Sutter, 15 Cal., p. 259; Corcoran vs. Doll, 
82 Cal., p. 82. 

2. Damages for Death of Decedent.— A suit for 
damages for the death of decedent can be brought only 
by the administrator or executor. — Kramer vs. Market 
St. R. R. Co., 25 Cal., p. 435. 

3. Legal Title mubt be represented to Recoykr 
Lands — But a person having the equitable title cannot 
sue to recover possession of lands. Such action roust 
be in the name of the party holding the legal title; 
thus, where a grant of land was made to P., which 
was confirmed by decree of the Board of Land Com- 
missioners, from which an appeal was taken to the 
United States District Court. Pending the appeal, P. 
died, leaving a will. An oixler was made in the 
United States Court, on petition of the heirs of P., and 
the executors of the estate, substituting the heirs in the 

^ proceedings in place of P., and the Court then con- 

firmed the land to the heirs, and it was surveyed, and 

* the survey approved. Subsequently, E. was appointed 

administrator, with the will annexed. It was held that 
the legal title was in the heirs, and that the adminis- 
trator could not maintain an action to recover posses- 
sion of the same. — Emeric vs. Penniman, 26 Cal., p. 
122; Salmon vs. Symonds, 30 Cal., p. 301. 

4. Foreclosure of a Mortgage upon Rbai. 
Property.— See Burton vs. Lies, 21 Cal., p. 87. 

5. The Heir must not be joined with the 
Administrator, in an action to recover a debt due 



Code op Civil Procbdubb. 



215 



to the decedent. The debts yest in the administrator 
and not the heir, for it is a personality, and not reality. 
The administrator has alone the right to maintain the 
action. — Grattan vs. Wiggrins, 23 Cal., p. 16. 

6. Action against Executobs and Adminis^ 
TRAT0R8. — It was held, the general right to sue an 
administrator was taken away by statute, except in 
case of presentation and refection of the account. — 
EUissen vs. Halleck, 6 Cal., p. 886; Falkner vs. Fol- 
som's Executors, 6 Cal., p. 412. 

7. Administrator a proper party to all Suits 
RESPECTING PROPERTY OP DECEDENT.— The adminis- 
trator has possession of all the real and personal prop- 
erty of the decedent, and is, therefore, a proper party 
to any suit concerning it. — Harwood vs. Marye, 8 Cal., 
p. 580; Belloc vs. Bogers, 9 Cal., p. 124. 

8. Administrator cannot be Sued on a Claim 
until the same has been presented and re- 
JECTED. — The claimant must present his claim, prop- 
erly verified, to the administrator, that the administra- 
tor and the Probate Judge may determine whether 
they will allow or reject the claim. If the claimant 
does not thus present his claim he can maintain no 
action thereon against the administrator. — Hentsch vs. 
Porter, 10 Cal., p. 559. 

9. As TO Mortgages, Liens, etc.— Their Presen- 
tation, ETC. — See Belloc vs. Bogers, 9 Cal., p. 123; 
Carr vs. Caldwell, 10 Cal., p. 380; Hentsch vs. Porter, 
10 Cal., p. 559. It was held in Fallon vs. Butler, 21 
Cal., p. 24, that an action could be maintained against 
an executor or administrator to foreclose a mortgage 
given by the decedent, although the debt secured had 
been presented to, and allowed by, the administrator 
and Probate Judge. If the action is only to reach the 
mortgaged property, and subject it to sale, and have 
the proceeds applied to the payment of the debt 
secured, and no judgment is asked against the general 
estate of the decedent; and the cases of EUissen vs. 
Halleck and Faulkner vs. Folsom's Executors, were 
overruled. It was further held that the word " claim *' 
did not embrace mortgage liens, etc. But this was 
doubted, and it was held that the word " claim ** was 
broad enough to include a mortgage, or any other lien. — 
Sllis vs. Polhemus, 27 Cal., p. 853. It may be stated, 
therefore, that an administrator or executor cannot be 
sued, unless the claimant present his claims for allow- 
ance, and that the rule applies equally to mortgages 
and other liens as it does to any other claims. — See, 
generally, Ellis vs. Polhemus, 27 Cal., p. 853; Willis 



4r 






5 



4 



216 Code of Civil Peocedurb. 

vs. Farley, 24 Cal., p. 491; Fallon vs. Butler, 21 Cal., p. 
24; Ellissen vs. Halleck, 6 Cal., p. 386; Faulkner vs. 
Folsoni's Executors, 6 Cal., p. 412; Hentsch vs. Porter, 
10 Cal., p. 555;^ Carr vs. Caldwell, 10 Cal., p. 380; 
Belloc vs. Rogers, 9 Cal., p. 123. 

10. Admikistrator cannot be Joined with Sur- 
vivor ON Joint Obligation.— In actions upon joint 
and several obligations the administrator cannot be 
joined with survivor. — May vs. Hanson, 6 Cal., p. 642; 
Humphreys vs. Crane, 5 Cal., p. 173. 

11. Trustees of Express Trust.— See Kreutz vs. 
Living^ston, 15 Cal., p. 344, and cases cited therein. A 
person to whom a note is payable for the benefit of 
another is, under this section, a trustee of an express 
trust. — Winters vs. Bush, 34 Cal., p. 136. 

12. Attorney in Fact is not a Trustee.— One 
who is described in an instrument, whether patrol or 
special, as the attorney in fact of another, does not hold 
the character of trustee, and is not a necessary party 
to represent the interest of the principal. Our statute 
requires every action to be prosecuted in the name of 
the real party in interest. — Powell vs. Boss, 4 Cal., p- 
198. 

13. Guardian is not Trustee of Express Trust- 
A guardian appointed by the Probate Court, under the 
Act which provides for the appointment and prescribes 
the duties of guardians, is not a trustee of an express 
trust within the meaning of this section. — Fox vs. 
Minor, 32 Cal., p. 116. 

14. Miscellaneous Actions on Bonds taken in 
NAME of the People. — Bonds in the name of the 
people for the benefit of others should be prosecuted in 
the name of the party in interest, although it is made 
payable to the people of the State. — Baker vs. Bartol, 
7 Cal., p. 551. 

When* 370. (§7.) When a married woman is a party, 

woman is a her husband must be joined with her, except: 
aad^iunjnit ■'- ^^®^ *^^ action conccms lier separate property, 
or her right or claim to the homestead iwoperty, she 
may sue alone; 

2. When the action is between herself and her hus- 
band, she may sue or be sued alone; 

8. When she is living separate and apart from her 
husband, she may sue or be sued alone. 



Code of Civil Prockdure. 



217 



Note. — Stats. 1868, p. 550. The third subdivision is 
taken from the statutes of 1870, p. 226. 

1. Construction of Section — Since Married 
"Women can sue or defend alone, they are re- 
sponsible ALONE FOR COSTS, ETC., OF SUIT, IF UNSUC- 
CESSFUL. — This section provides in what cases a married 
woman may sue and be sued, without imposing any 
conditions or bestowing any privileges. Thus, in the 
cases mentioned, she is put upon a common level with 
all other parties to actions, no discrimination being 
made in her favor, or against her. Thereafter the Code 
proceeds, and without any distinction as to persons, 
prescribes in general terms, applicable to all alike, the 
manner in which actions shall be prosecuted, and the 
nature and fonn of the judgments which shall be ren- 
dered, and the manner in which the same shall be 
executed. The provisions in the Code relating to 
judgments do not declare that judgments may be ren- 
dered in favor but not against married women; on the 
contrary, they merely provide, in general terms, when 
the plaintiff or defendant shall have judgment and exe- 
cution, regardless of the fact whether they are male or 
female, married or unmarried. The provisions of the 
Practice Act, allowing a married woman to sue alone, 
is not merely the adoption of the old chancery rule, 
allowing her, in certain cases, to sue by her ** next 
friend." It is something more, for it allows her to sue 
alone. The office which the prochein ami performed 
was to be responsible for costs. 

The old form of suing by procliein ami is abolished, 
but the right of the opposite party to recover costs is 
unimpaired, and, as a necessary consequence, result- 
ing from dispensing with the prochein ami, the married 
woman has herself been charged with the responsi- 
bility which previously attached to him; and there is 
no good reason why it should not be so. If she is to 
be regarded as a feme sole for any purpose connected 
with litigation, she ought to be so regarded for all. 
There is no justice in according to her all the advan- 
tages and benefits to be gained by an action, and at the 
' same time exempting her from all risk and responsi- 
bility. If she is to be allowed the rights of a suitor, 
she must, in the absence of an express provision to the 
contrary, be held to take also the responsibilities of a 
suitor, for they ought not to be separated. A question 
somewhat analogous arose in Alderson vs. Bell, 9 Cal., 
p. 821, where the Court said: *' In this State the wi& 



28 — Yoi*. I. 



218 CoDB OF Civil Procedure. 

can appear in and defend an action separately from her 
husband. To enable her to do so, she must possess, as 
defendant, all the rights of 9k feme sole, and be enabled 
to make as binding admissions in writing, in the action, 
as other parties.'' The question has arisen in New 
York, from which State our system is borrowed, and 
has been there determined in accordance with the views 
entertained by us. In Moncrief vs. Ward, New York 
Com. Pleas (reported in note to Baldwin vs. Eimmel, 
16 Abbott's Prac. R., p. 364), this same question was 
involved, and it was held that an execution for costs 
against a married woman could be enforced against her 
separate estate, whether it contains a direction to that 
effect or not. Mr. Justice Brady said: "Having the 
right to sue, the power must be employed cum onere. 
The statute awarding costs does not exempt a married 
woman, either as plaintiff or defendant, from the pay- 
ment of costs when unsuccessful. There is no just 
reason why she should be thus exempted. Having the 
status of a feme sole in the Courts, if she &il in her 
action, it would be unjust to compel her adversaiy to 
resort to extraordinary modes to collect his costs. It 
cannot be that the Legislature intended this. It is true 
that, until the amendment of the Code (Sec. 274) in 
1862, the Legislature did not in express terms provide 
that costs could be recovered against her, but such was 
the effect of the statutes then in existence, as I inter- 
pret them. That amendment merely declared the 
necessary legal conclusion from th« existing statutes; 
no class of suitors, as already suggested, liaving been 
excepted from them. The execution to compel the 
payment of such costs must be enforced against her 
separate estate, whether so directed or not. It cannot 
be employed against the property of another person 
per «c." — Leonard vs. Towsend, 26 Cal., p. 443. 

2. Wife may choose whether she well sue or 
defend alone or in connection with her hus- 
BAND. — It has been held that this section is not obliga- 
tory upon the wife to sue or defend alone; it confers 
only a privilege which, in many instances, it may be 
important for her to assert for the protection of her 
interests, and in the exercise of which the fullest lib- 
erty should be accorded her. — Van Maren vs. Johnson, 
15 Cal., p. 311; Kayos vs. Phelan, 19 Cal., p. 128. 

3. Suits concerning the Homestead Prop- 
erty.— The original statute, 1851-2, did not contain 
the clause ''or her right or claim to the homestead 
property," and the phrase was added by the amend- 
ment of 1867-6, p. 550. Until after the passage of the 



Code op Civil Peocbdurb. 219 

amendment the Court had held a wife could not sue 
alone to recover the homestead. — See Poole vs. Gerrard, 
6 Cal., p. 71; Bevalk vs. Kraemer, 8 Cal., p. 66; Cook 
vs. Klink, 8 Cal., p. 847; and see Gee vs. Moore, 14 Cal., 
p. 472, overruling these cases in some particulars, but 
not as to this point, it seems; see Guiod vs. Guiod, 
14 Cal., p. 507; see, also. Moss vs. Warner, 10 Cal., p. 
296. And it was said that a wife had no right in the 
homestead independent of the husband, which she 
could enforce against his consent, and that she could 
not maintain a suit for it in her own name alone. — 
Guiod vs. Guiod, 14 Cal., p. 506. And in a suit against 
the husband for a foreclosure of a mortgage upon the 
homestead, it has been held that when the husband 
appears and defends alone, any decision the Court 
could make in regard to the homestead could not 
affect the rights of the wife, she not being a party to 
the suit. And such is the nature of the title to the 
homestead that the rights of the husband cannot be 
affected without affecting those of the wife also. If 
no binding decision can be made when one of them 
only is a party, then it is idle for the Court to make 
any decision at all in such a case. — Marks vs. Marks, 
9 Cal., p. 97. 

4. Separate Propekty.— Snyder vs. Webb, 3 Cal., 
p. 83. When the action concerns the wife^s separate 
property, it has been held she may seek the aid of the 
Court either with or without her husband. — Van Maren 
vs^ Johnson, 15 Cal., p. 311; Kayes vs. Phelan, 19 Cal., 
p. 128; Calderwood vs. Pyser, 31 Cal., p. 333; Corco- 
ran vs. Doll, 32 Cal., p. 82. 

5. Foreclosure or Mortgage on Wipe's Sepa- 
rate Property. — In an action for the foreclosure of 
mortgage executed by the husband, if the wife alleges 
the land was her separate property by virtue of a pre- 
vious conveyance from the husband to her, she may be 
made a defendant. — Kohner vs. Ashenauer, 17 Cal., p. 
578. 

6. Action between Wife and Husband.— Ka- 
shaw vs. Kashaw, 3 Cal., p. 312. 

7. Foreclosure or Mortgage executed by both 
Husband and Wife.— If a wife executes a mortgage 
with her husband, she may be made a party defendant 

» 

along with her husband in an action to foreclose the ( 

t 

same, without alleging her interest in the property ^p 

mortgaged. — ^Anthony vs. Nye, 30 Cal., p. 401. ^<'^ 

8. Action for Damages for Injury to the 
PERSON OF the Wife. — Husbaud and wife must be 
joined.— Sheldon vs. Steamer U. S., 18 Cal., p. 526. ^ 



220 



Code of Civil Procedure. 



Wifo may 

defend, 

when. 






In&ntio 
appear by 
guardian. 



9. Partnership obligation contracted by 
Wife and third parties previous to Marriage. 
The husband of a married woman is properly joined 
with her as defendant in an action upon a partnership 
obligation contract<3d by the wife and third person as 
partners previous to the marriage and wliile she was a 
feme sole, — Keller vs. Hicks, 22 Cal., p. 457. 

10. When the Wife lives apart from Hus- 
band. — The third subdivision is taken from the Stat- 
utes of 1870, p. 226. 

11. Sole Trader. — In a suit against a married 
woman, who is a sole trader, on a contract made by 
her, she must be sued alone. — McKune vs. McGarvey, 
6 Gal., p. 497. And an action may be maintained by 
a married woman, who is a sole trader, in her own 
name, without joining her husband. — Guttman vs. 
Scannell, 7 Cal., p. 455; see, also, Camden vs. Mullen, 
29 Cal., p. 564. 

12. Damages to Community Property. — In an 
action for damages to the community property the hus- 
band must sue alone — the wife cannot be made a 
party.— Sheldon vs. Steamship U. S., 18 Cal., p. 526; 
Barrett vs. Tewksbury, 18 Cal., p. 3S4. 

371 . (§ 8.) K a husband and wife be sued together, 
the wife may defend for her own right, and if the hus- 
band neglect to defend, she may defend for his right 
also. 

Note.— The words, " and if the husband neglect," 
etc., are added to the original provisions of Section 8 
of the Practice Act. 

1. The wife can appear in and defend an action sepa- 
rately from her husband. To enable her to do so she 
must possess, as defendant, all the rights of a feme 
sole, and be able to make as binding admissions in writ- 
ing in the action as other parties. — Alderson vs. BeU, 9 
Cal., p. 315. 

•2. The wife may defend for her own right as well 
when sued jointly with her husband as if the trial were 
separate; her defense, if a separate one, could come in 
in either case. — ^See Buprez vs. Duprez, 5 Cal., p. 388. 

372. (§ 9.) When an infant is a party he mtust 
appear by his general guardhtn, if he has one; and 
if not, by a guardian who may be appointed by the 
Court in which the action is prosecuted, or by a Judge 
thereof, or a County Judge. 



Code of Civil Procedurb. 



221 



NoTK.-jT-l. Appear by Gknera^ not Special, 
GuARDijmhh-** R)fi«iltSKiWMutlB|jl^^ l^is general 
guardian,nfne has one." — Spear vs. Ward, 20 Cal., p. 
660. But it has been held that, although the infant 
may have a general guardian, yet the Court will ap- 
point a guardian ad litem if the interests of the infant 
require it. — Groufier vs. Puymisol, 19 Cal., p. 629. The 
words '* his general guardian, if he has one; and if not, 
then by," etc., were not in the section when the above 
decision was rendered. 

2. Guardian appointed by Will may act before 
liETTBBS I8SUE. — If a guardian is appointed by the will 
it is not necessary that any letters of guardianship should 
issue to authorize the guardian to act. The order of ap- 
pointment, when made by the Probate Court, consti- 
tutes the authority of the guardian and the will in cases 
of testamentary appointment; that of guardian in other 
cases. — Morris vs. Harris, 15 Cal., p. 256. 

3. When Married Women regarded as Infants 
WHEN UNDER AGE. — It has been held that in some in- 
stances the disability of infancy attaches as well to mar-^ 
ried women under age as it does to other infants. — See 
Magee vs. Welsh, 18 Cal., p. 159. 

4. Action in name of Infant for money due 
HIM. — In an action to recover money due to an infant, 
the action must be brought by the guardian in the name 
of the infant, and not in the name of the guardian. — 
fox vs. Minor, 82 Cal., p. 111. 

6. Guardian ad litem not appointed until 
Infant is brought in Court.— The Court has no 
right to appoint a guardian ad litem, until the infant is 
properly brought into Court. — Gray vs. Palmer, 9 Cal., 
p. 638. 

6. Guardian ad litem limited in authority. 
A guardian ad litem has only a special and limited 
authority, and cannot go beyond it. Where guardians 
€id litem are appointed to represent an infant in a suit 
for the partition of real property, they had no authority 
to give and gave no assent to a decree, nor for partition 
or division of a common estate, but for a foreclosure oi[ 
all claim of the infants, and the quieting against them 
of the plaintiff's title to the particular piece of land 
mentioned in the decree. The Court might as well 
have entered a decree affecting their title or declaring 
void their claim to any other property. The infants 
were not before the Court for any such purpose, and 
the appointment of the guardian being a special power 
exercised by the Court, and giving only special and 
limited authority to the guardians, it would seem that 



222 Code op Civil Procedure. 

.their acts, so far transcendiDg this authority, would be 
*' J .Wtilv^WitQKPVu» yi} L%W9ence, 19 Cal., p. 217. 

7. Infant's day in Court afteb hk attains 
HIS MAJORITY, KTC.-=-At commoTi law, when the heir 
was sued at law, upon a speciality obligation of the 
ancestor chargeable upon the inheritance, he might 
pray that ** the parol demur'' — that is to say, that the 
pleadings or proceedings he stayed till he should attain 
his majority. This privilege was based on feudal rea- 
sons, and was confined to heirs. It did not even ex- 
tend to devisees. ** Courts of equity did not, however, 
confine this species of protection to cases precisely 
similar to those in which the parol could demur at law, 
but by a kind of analogy they adopted a second rule by 
which in cases of foreclosure and partition, and in all 
such cases in which the real estate of an infiint was to 
be sold or conveyed under a decree of the Court, and, 
consequently, the execution of the conveyance was 
necessarily deferred, the infant had an opportunity, 
after attaining twenty-one, to show cause against the 
decree. For this purpose a provision was inserted in 
the decree." — ^Joyce vs. McAvoy, 31 Cal., p. 279, and 
cases there cited. 

Oaardian, 373. When a guardian is appointed by the Court, 
appointed, he luust be appointed as follows: 

1. When the infant is plaintiff: upon the applica- 
tion of the infant, if he be of the age of fourteen years; 
or if under that age, upon the application of a relative 
or friend of the infant; 

2. When the infant is defendant: upon the applica- 
tion of the infant, if he be of the age of fourteen 
years and apply within ten days after the service of 
the summons; if he be under the age of fouiteen, or 
neglect so to apply, then upon the application of any 
other party to the action, or of a relative or friend of 
the infant. 

KoTE. — This section relates to the appointment of a 
guardian ad litem where there is no general guardian. 
Spear vs. Waid, 20 Cal., p. 659; Norris vs. Harris, 15 
Cal., p. 255; Groufier vs. Puymisol, 19 Cal., p. 029. 
See the cases referred to in note to the preceding sec- 
tion. 



Code of Civil Procedubb. 



223 



374. An unmarried female may prosecute, as Unmamed 

•' * female may 

plaintiff, an action for her own seduction, and may J^® J^^^ 
recover therein such damages, pecuniary or exemplary, soduction. 
as are assessed in her &vor. 

Note. — This, and the succeedinii^ Bection, are new. 
Heretofore the action could only be in the name of the 
parent, or one who stands in that relation, and is sup- 
ported by the fiction that he has suffered pecuniary 
injury by loss of service, etc. The object of these 
sections is to provide a remedy in fieivor of the party 
irgured, and to make the law, in this respect, harmoni- 
ous with the declaration of the Code, *' that all actions 
must be prosecuted in the name of the real party," etc. 

375. A father, or, in case of his death or desertion Father, 

, etc., may 

of his femily, the mother, may prosecute as plaintiff Seduction of 
for the seduction of the daughter, and the guardian etS***'"^' 
for the seduction of the ward, though the daughter or 
ward be not liying with or in the service of the plain- 
tiff at the time of the seduction or afterwards, and 
there be no loss of service. 



A 









< 

y 



376. (§ 11.) A fether, or, in case of his death or Father. 

• et&t may 

desertion of his fitmily, the mother, may maintain an ^"©fo'f 

^ •' ' T J mjury or 

action for the injury or death of a child, and a guar- ohS£°^ 
dian for the injury or death of his ward. 

Note. — It was held that the eleventh section of the 
Practice Act (which was in the same terms as this 
section), which provides that the father, or, in case of 
his death or desertion of his family, the mother, may 
maintain an action for the injury or death of a child, 
and a guardian for the injury or death of his ward, 
does not create a right of action where none existed 
before, but merely designates the persons by whom an 
action, for the causes therein mentioned, which then 
existed, or might thereafter be created by statute, 
should be brought; and at the time the Practice Act 
was passed, the death of a person constituted no cause 
of action ; and the eleventh section of that Act, so far 
as it designates the parties by whom an action for the 
death of a person may be brought, is repealed by the 
Act of 1862 (see next section), which provides that 
*' every such action shaU be brought by and in the 



^ 

IM 

^ 



224 



C!oDB OP Civil Procedure. 



i 

0' 



4/ 

9 



When 
representa- 
tires may 
sue for 
death of 
one caused 
by the 

WTODffftll 

act of 
another. 



names of the personal representatives of such deceased 
person/*— Kramer vs. Market St. R. R. Co., 25 Cal., p. 
435. 

377. When the death of a person is caused by the 
wrongful act or neglect of another, his heirs or per- 
sonal representatives may maintain an action for 
damages against the person causing the death; or 
when the death of a person is caused by an injury 
received in falling through any opening or defective 
place in any sidewalk, street, alley, square, or whar^ 
his heirs or personal representatives may maintain an 
action for damages against the person whose duty it 
was, at the time of the injuiy, to have kept in repair 
such sidewalk or other place. In every such action 
the jury may give such damages, pecuniary or exem- 
plary, as, under all the circumstances of the case, may 
to them seem just. t 

Note.— This section is intended as a substitute for 
' '* An Act requiring compensation for causing death by 
wrongful act, neglect, or default."— Stats. 1862, p. 447. 
The portion of that Act relating to the time in which 
the action must be commenced is inserted in Chapter 
3 of the Title relating to the time in which civil actions 
must be commenced. — See Kramer vs. Market St. B. 
R. Co., 25 Cal., p. 435. 

378. (§ 12.) All persons having an interest in the 
pUintiffa. subjcct of the action, and in obtaining the relief de- 
manded, may be joined as plaintiffs, except when 
otherwise provided in this Title. 

NoTK.— 1. " Having an interest in the subject 
OF THE Action.*'— See Sec. 367, ante, and notes. In 
an action of trover all parties iji interest should be 
joined. — Whitney vs. Stark, 8 CaL, p. 514. 

2. " Except when otherwise provided in this 
Title."— See the following notes. 

3. " Assignees of Things in Action.'* — See Sec 
368, ante, and notes. 

4. Executors, Administrators, and Trustees. 
See Sec. 869, ante, and notes. 

5. Married Women.— See Sees. S70 and 371, ante, 
and notes. 



MThoinay 



CJoDB OP Civil Procedure, 225 

6. For Iitfants and Guardian.— See Sec. 872, 
ante, and notes. 

7. Actions by Parents in certain cases.— See 
Sees. 375 and 376, ante, and notes. 

8. Actions by Heirs and Personal Representa- 
tives for death of person by wrongful act. — See pre- 
ceding section. 

9. When one or more parties may Sue or defend 
for all the parties in Interest. — See Sec. 382, post. 

10. Actions to Quiet Title.— See Sec. 788, post. 

11. Parties having an Interest — Who are 
PROPER PARTIES TO EQUITY ACTIONS.— Who are the 
proper and necessary parties to a suit in equity is a sub- 
ject of great practicable importance, and oftentimes of 
no inconsiderable difficulty. It is the constant aim of a 
Ck>urt of equity to do complete justice, by deciding upon 
and settling the rights of all parties interested in the sub- 
ject of the suit, so as to make the performance of the 
decree of the Court perfectly safe to those compelled to 
obey it, and to prevent further litigation. For this 
purpose, all persons materially interested, either legally 
or beneficially, in the subject matter of the suit, ought 
generally to be made parties thereto, either as plaintiffs 
or defendants, so that there may be a .complete decree, 
which shall bind them all. — Miltford^s Plead., 6th Am. 
ed., p. 189; 1 Baniell's Ch. Plead, and Prac, p. 40; 
Story's Eq. Plead., Sec. 72; People vs. Morrill, 26 Cal., 
pp. 360, 361. The rule, as stated and illustrated in 
King vs. Berry's Executors, 2 Greene's Ch. B., p. 52, 

is, that all persons legally or beneficially interested in • 
the subject matter and result of a suit must be parties; 
and to the same effect are the following cases: The 
Mechanics' Bank vs. Seton, 1 Peters, p. 306; Caldwell 
vs. Taggart, 4 id., p. 190; Marshall vs. Beverly, 5 
Wheat., p. 318; Conn. vs. Penn., 5 id., p. 424; Williams 
vs. Russell, 19 Pick., p. 165; to which many others 
might be added. But to this general rule there are, 
according to the authorities, exceptions. — Mit. Plead., 
p. 190; Story's Eq. Plead., Sees. 76, 76 a, 76 6, 76 c; 
Wiser vs. Blackly, 1 John. Ch. R., p. 43. These it is 
not necessary to notice in this place, as no question is 
presented requiring it. There is a distinction made in 

• 

some of the authorities between, su^ect matter of the 
suit and object of the suit, and it has been said, that it 
18 not all persons who have an interest in the subject 
matter of the suit, but in general, those only who have 
an interest in the object of the suit, who are ordinarily 



29 — Vol. I. 



Com of Civil Peogedube. 

required to be made parties. — Ci^lYert on Parties, pp. 
5, 6, 10, 11. 

1%e seneral rale on the subject may be stated to be, 
that all are necessary parties who have an interest in 
the subject matter which may be affected by the de« 
cree— ^mith vs. The Trenton Delaware Falls Ck>m- 
pany, S Green's Ch. B., p. 506; Crease tb. Babcock, 10 
Met. B., p. 581. The rule is founded in the principle 
of prerenting future litigation and avoiding a multi- 
plicity of suits by adjudicating upon the rights of all 
parties upon whom a decree may or ought to operate. 
But this rule requiring all in interest to be before the 
Court, is one somewhat of convenience, and will not be 
rigidly enforced where its observance would be attended 
with great inconvenience, and answer no substantially 
beneficial purpose. It will be modified, pr partially 
dispensed with, in the discretion of the Court, as jus- 
tice and the exigencies of the case may require. Hav- 
ing thus referred generally to the rule of Courts of 
equity in relation to what persons ought to be made 
parties to a suit, we shall proceed directly to the con- 
sideration of the question in issue — that is to say, 
the objection that there is a misjoinder of parties 
defendants, and an improper union of causes of action; 
or in other words, that the complaint is Ihtally infected 
with the vice of multifariousness. A bill in equity is 
said to be multifarious when distinct and independent 
matters are joined therein; as, for example, the uniting^ 
of several matters perfectly distinct and unconnected 
against one defendant, or the demand of several mat- 
ters of a distinct and independent nature against several 
defendants. But the case of each particular defendant 
must be entirely distinct and independent from that of 
the other defendants, or the objection cannot prevail; 
for, as said by Judge Story, **the case of one may be 
so entire as to be incapable of being prosecuted in sev- 
eral suits, and yet some other defendant may be a 
necessary party to some portion only of the case stated. 
In the latter case the objection of multifi&riousness 
could not be allowed to prevail. So it is not indispen- 
sable that all the parties should have an interest in all 
the matters contained in the suit; it will be sufficient if 
eyh party has an interest in some matters in the suit, 
and they are connected with the others."— Story's Eq. 
Plead., Sees. 271, 271a. The same authority lays it 
down that " to support the objection of multi&rioos- 
ness, because the bill contains different causes of suit 
against the same person, two things must concur: 
first, the difiTerent grounds of suit must be wholly dis- 



CoDB OF Civil Procedure. 227 

tinct; secondly, each ground must be sufScient as 
stated to sustain a bill. If the grounds be not entirely 
distinct and unconnected; if they arise out of one and 
the same transaction, or series of transactions, forming 
one course of dealing, and all tending to one end; if 
one connected story can be told of the whole, the objec- 
tion does not apply."— Sec. 2716. When the point in 
issue is a matter of common interest among all the 
I)arties to the suit, though the interests of the several 
defendants are otherwise unconnected, still they may 
be joined. In Salvidge vs. Hyde, 5 Madd. B., p. 188, 
Sir John Leach, Vice Chancellor, said: ** If the objects 
of the suit be single, but it happens that different per- 
sons have separate interests, indistinct questions which 
arise out of the single object, it necessarily follows that 
such'clifferent persons must be brought before the Court, 
in order that the suit may conclude the whole subject.'' 
In Boyd vs. Hoyt, 5 Paige, p. 78, Mr. Chancellor Wal- 
worth laid down the same doctrine in substantially the 
language used by Sir John Leach in Salvidge vs. Hyde. 
And Mr. Daniell, in the first volume of his excellent 
#work on Pleading and Practice in the High Court of 
Chancery, at pag^ 386, says in reference to the doctrine 
held in Salvidge vs. Hyde, *^ there is no doubt that the 
learned Judge stated the principle correctly, though in 
the application of it he went, in the opinion of Lord 
Eldon, too ftir."— 1 Jftc. R., p. 151. In Whaley vs. 
Dawson, 2 Sch. & Lef., p. 370, Lord Rosedale observed 
that in the English cases where demurrers, because the 
plaintiff demanded in his bill matters of distinct natures 
against several defendants not connected in interest, 
have been overruled, there has been a general right in 
the plaintiff covering the whole case, although the 
rights of the defendants may have i>een distinct. In 
such cases the Court proceeds on the ground of pre- 
venting multiplicity of suits when one general right is 
claimed by the plaintiff against all the defendants. And 
so in Dimmock vs. Bizby, 20 Pick., p. 388, the Court 
held that where one general nght is claimed by the ^ 

plaintiff, although the defefnd&nts mky have separate 
and distinct rights, the bill of complaint is not multi- 
firrious. In the elaborate case d{ Campbell vs. Mackay, 
1 Myl. ft Craig, p. 608, Lord Oottenham held that 
w^ere the plaintiffs have a common interest against all 
the defendants in a etdi as to one or more of the ques- 
tions raised by it, so as to make them all necessary 
parties ttfr the purpose of enforcing that common in- 
tere^, the ctrciim»tanee ef the defendant being subject 
to distioet liabilities, te neped to dlffisrent branches of 



228 Code op Civil Procedure. 

the subject matter, will not render the bill multifarious. 
In the same case his Lordship observed that it was 
utterly impossible, upon the authorities, to la3'' down 
any rule or abstract proposition as to what constitutes 
multitariousness which can be made universally appli- 
cable. The only way, he said, of reconcUing the 
authorities upon the subject is by adverting to the fact 
that although the books speak generally of demurrers 
for multifariousness, yet, in truth, such demurrers may 
be divided into two kinds, one of which, properly speak- 
ing, ip on account of a misjoinder of causes of action — 
that is to say, uniting claims of so different a character 
that the Court will not permit them to be litigated in 
one record, even though the plaintiff and defendants 
may be parties to the whole transactions which form 
the subject of the suit. The other of which, as applied 
to a bill, is that a party is brought as a defendant upon 
a record with a large portion of which, and with the 
case made by it, he has no connection whatever. A 
demurrer for such cause is an objection that the com- 
plaint sets forth matters which are multifarious, and 
the real cause of objection is, as illusUptcd by the old 
form of demurrer, that it puts the parties to great and 
useless expense — an objectipn which has no application 
in a case of mere misjoinder of parties. Upon this 
subject Judge Story says: "In the former class of 
cases, where there is a joinder of distinct claims be- 
tween the same parties, it has never been held as a 
distinct proposition that they cannot be united, and 
that the bill is of course demurrable for that cause 
alone, notwithstanding the claims are of a similar 
nature, involving similar principles and results, and 
may, therefore, without inconvenience, be heard and 
adjudged together. If that proposition were to be 
N established and carried to its full extent, it would go to 

prevent the uniting of several instruments in one bill, 
although the parties were liable in respect to each, and 
the same parties were interested in the property which 
was the subject of each.'' And after giving an ex- 
ample in illustration of the inconvenience of an oppo- 
site doctrine, he continues: " Such a rule, if established 
in equity, would be very mischievous and oppressive 
in practice, and no possible advantage could be gained 
by it. It would be a multiplication of suits in cases 
where it could answer no assignable purpose but to 
have the subject matter split into a variety of separate 
.bills." And further, he denies that such a rule has 
been established, but says, on the contrary, a different 
doctrine has been maintained, which is supported by 



Code op Civil Procbdueb. 229 

the most satisfactory authority. — Story's Ex. PI., Sees. 
531, 532. And he states, in conclusion, the result of 
the principles of the cases on the subject to be, that 
where there is a common liability in the defendants, 
and a common int^st in the plaintiffs, different claims 
to property, at least if the subjects are such as may 
without inconvenience be joined, may be united in one 
and the same suit; and further, that where the inter- 
ests of the plaintiffs are thb same, although the defend- 
ants may not have a co-extensive c6mmon interest, but 
their interests may be derived under different instru- 
ments, if the general objects of the bill will be pro- 
moted by their being united in a single suit, the Court 
will not hesitate to sustain the bill against all of them. — 
Ibid, Sees. 533, 534; Wilson vs. Castro, 31 Cal., p. 
426. 

12. Parties interksted in Annuling Patent. 
Persons not owning a joint interest in the real estate, 
yet if they have a common interest in annuling a patent 
therefor, they may be joined as plaintiffs. — People vs. 
Morrill, 26 Cal., p. 352; see, also, People vs. Stratton, 
25 Cal., p. 244. 

13. Action by Assignee of equitable Title for 
Specific Performance.— Where A. contracts for the 
conveyance of certain lands to B., the assignees of B., 
who has the equitable title, may jointly maintain an 
action against A. for a specific performance. — Owen vs. 
Frink, 24 Cal., p. 177. 

14. Joint Action by several holders of Me- 
chanics* LiKNS. — Several parties, holding mechanics* 
liens, may be joined for the enforcement of the liens, 
even though they have no common interest together. — 
Burber vs. Reynolds, 33 Cal., p. 502. 

15. Agents — Action by. — Generally agents cannot 
maintain action in their own name for causes arising 
out of the subject matter of the agency. — Lineker vs. 
Ayeshford, 1 Cal., p. 75; Phillips vs. Uenshaw, 5 Cal., 
p. 509. But, if a note is payable to a person, as agent 
of another, yet he may sue in his own name at law. — 
Ord vs. McKeo, 5 Cal., p. 515. If two agents are em- 
ployed to do a certain business, each agent may, in 
some cases, maintain a separate action for his expenses. 
Conner vs. Hutchinson, 12 Cal., p. 127. 

16. Principals, when they may sue in their own 
names on contracts made by their agents. — See Buiz 
vs. Norton, 4 Cal., p. 358; Brooks vs. Minturn, 1 Cal., 
p. 482; Thurn vs. Alta Telegraph Co., 15 Cal., p. 472; 
Lubert vs. Chauviteau, 3 Cal., p. 462. 

17. Assignees.— Generally an assignee may bring 



I 



280 • C!oDB OF Civil Peocedxjre. 

an action in his own name. — "Wheatley vs. Strobe, 12 
Cal., p. 98. If the assignment was absolute of a whole 
demand, although he only acquired a portion thereof^ 
yet the assignee may sue for the whole debt. — Grad- 
, wohl vs. Harris, 29 Cal., p. 150. But the assignment 

of a portion of a ffebt does not constitute the assignee 
a joint owner in the whole debt, and he need not neces- 
sarily be joined as a party in an action to recover the 
debt. — Leese vs. Sherwood, 21 Cal., p. 152. 

18. Assignment or Contract as SECimiTT of 
Debt, etc. — "An assignment of a contract as a security 
for a debt, and also in consideration of a covenant not 
to sue upon the debt, entitles the assignee to sue on the 
contract in his own name." — Warner vs. "Wilson, 4 Cal., 
p. 310 (syllabus); see, also, Gray v^. Garrison, 9 Cal., 
p. 325. When assignee of a judgment may sue on 
appeal bond.—See Moses vs. Thorne, 6 Cal., p. 88. 

19. Indorskrs and Indorsees.— The holder of a 
non-negotiable note may maintain an action against 
the person assigning the same to him, and also against 
every one from whose hands the note has passed by 

• assignment. — Hamilton vs. McDonald, 18 *Cal., p. 128. 
If a new promise has been made to a payee, a subse- 
quent indorsee succeeds to the rights of the payee, and 
may maintain an action upon it.— Smith vs. Richmond, 
19 Cal., p. 476. 

20. Joint Contracts, Bills of Lading, and 
Leases. — As to joint contracts, both joint contractors 
must be joined as plaintiffs in an action thereon, not- 
withstanding only one of the contractors has sus-tained 
damage. — See McGilvery vs. Moorehead, 3 Cal., p. 
267. A suit being brought upon a bill of lading made 
to the plaintiff jointly with another party. Held: the 
plaintiff had no separate cause of action. — ^Mayo vs. 
Stansbury, 3 Cal., p. 465. Also, as to joint leases, see 
Treat vs. Liddell, 10 Cal., p. 802. 

21. Actions by or against Counties.- See Politi- 
cal Code, Sees. 4000, 4003, and 4452, and notes. See, 
also, Smith vs. Myers, 15 Cal., p. 33; Mendocino Co. 
vs. Lamar, 30 Cal., p. 627; Mendocino Co. vs. Morris, 
32 Cal., p. 145; Placer Co. vs. Austin, 8 Cal., p. 305; 

^ Price vs. Sacramento Co., 6 Cal., p. 254; Sacramento 

Co. vs. Bird, 31 Cal., p. 66; Solano Co. vs. Nevil, 27 
Cal., p. 468; Sharp vs. Contra Costa Co., 84 Cal., p. 
284. 

22. Ejectment Sltits— " All Persons having an 
interest in the subject of the action,** etc, — 
Actions of ejectment must be prosecuted in the name 
of the real party in interest.— Bitchie vs. Dorland, 6 



Cobb of Civil Fbocedube. SSI 

Cal., p. 83. See, also, Seaward ys. Malotte, 15 Gal., p. 
804; Collier vs. Corbett, 15 Cal., p. 183; Stark vs. Bar- 
rett, 15 Cal., p. 361; Touchard vs. Crow, 20 Cal., p. 162. 
If the action is brought for the community property of 
husband and wife, the action should be by the husband* 
alone. — ^Mott vs. Smith, 16 Cal., p. 588. An heir at 
law can maintain the action without entry upon the 
land.— See Soto vs. Kroder, 19 Cal., p. 87; see, also, 
Estate of Woodworth, 81 .Cal., p. 604; UpdegrafT vs. 
Trask, 18 Cal., p. 458. 

28. NoN-BESiDSNT Alikn.— A non-resident alien 
may be plaintiff in an action of ejectment. — People vs. 
Eogers, 13 Cal., p. 165. 

24. Party to a Fraud.— A party to a fraud cannot 
niaintain an action thereon. — Dupuy vs. Williams, 26 
Cal., p. 313* 

25. Partners— Actions against each other. — 
One partner cannot sue the other in an action at law. 
The remedy is by bill in equity for a dissolution and an 
account. — Bamstead vs. Empire , Mining Company, 5 
Cal., p. 290; Stone vs. FAise, 3 Cal., p. 292; Russel vs. 
Ford, 2 Cal., p. 86; see, also, Buckley vs. Carlisle, 2 
Cal., p. 420. 

26. Chttrch— Who represents in an Action.— 
Priest may have power to sue for the church. — See 
Santillan vs. Moses, 1 Cal., p. 94. 

27. The State may sis a Party. — Civil actions.— 
See State vs. Poulterer, 16 Cal., p. 582. A private 
person cannot bring a suit for private wrongs in the 
name of the State. — See People vs. Pacheco, 29 Cal., 
p. 210. The State cannot be plaintiff in certain actions 
where she has no interest. — See People vs. Stratton, 25 
Cal., p. 244. 

28. Who may bring Action to annul Patents 
TO Mines. — The State, and persons who have a right to 
mine on the land under the mining laws of this State, 
may be joined as plaintiff in an action to annul a 
patent for land sold illegally. — People vs. Morrill, 26 
Cal., p. 352; Wilson vs. Castro, 81 Cal., p. 420; see, 
also, however. People vs. Stratton, 25 -Cal., p. 244. 

29. State cannot be Sued— Except as may be 
authorized by some statute. — People vs.. Talmage, 6 
Cal., p. 256. 

80. Administrators when proper Parties.— In 
an action to recover judgment on a promissory note, 
the suggestion of the death of the defendant, and the 
substitution of his administrator and the continuance 
of the suit against him, subjects the proceedings to such 
rules of the Probate Act as are applicable to proceed- 



232 Code of Civil Procedure. 

ings for the collection of claims against an estate of a 
deceased person. — Meyers vs. Mott, 29 Cal., p. 859. 

31. ADMINI&TBAT0R8 WHEN PARTIES. — ^Th0U{2rh the 

defendant in such an action be described in the caption 
of the complaint as administrator, yet the fkcts show 
that it is not sought to charge him as administrator, 
and no relief is sought against the estate. Held: that 
the objection that he is sued in his representative capac- 
ity is untenable. — People vs. Houghtaling, 7 Cal., p. 
848; Lathrop vs. Bampton, 31 Cal., p. 17. 

32. Same person interested both as Plaintiff 
AND Defendant. — Person being payee of a note and 
mortgage, and alfo payers of the same jointly with others 
may sue the other joint payers. Where thirteen per- 
sons made a joint and several promissory note, paytfble 
to three of their number, and all joined in the execu- 
tion of a mortgage to secure the payment of the note — 
the plaintiffs being both payers and payees in the note, 
and the mortgagors and mortgagees in the mortgage — 
and, subsequently, the payees of the note brought suit 
against the other makers, and for a foreclosure of the 
mortgage. Held : that the suit was properly brought, 
and plaintiffs were entitled so a judgment of fore- 
closure. — McDowell vs. Jacobs, 10 Cal., p. 387. 

33. AcTiONSTo Foreclose Mortgages.— The plain- 
tiff had the right to go into equity and foreclose the 
mortgage given to the principal to secure the note if 
he was really interested in the subject matter. — Ord 
vs. McKee, 5 Cal., p. 515. 

34. Mortgage given to secure Separate Debts 

OF SEVERAL PERSONS AS MORTGAGEES.—" Where a 

mortgage is given to secure the separate debts of sev- 
eral persons as mortgagees, it is a several security, and 
may be enforced by each creditor, as in case of a 
separate mortgage. But when other parties are inter- 
ested in the property, the Court will require them to 
be brought in before ordering a sale or foreclosure.*' — 
Tyler vs. Yreka Water Co., 14 Cal., p. 212, (syllabus.) 

35. Actions bt Assignees to Foreclose Mort- 
gage. — Where an assignment of a note and mortgage 
has been made to plaintiffs, to indemnify them as 
sureties on a bail bond for the assignor, and where suit 
is then pending on such bond, it is proper for them, as 
such assignees, to institute suit on the note and mort- 
gage; and a decree of foreclosure in such case, with 
directions to pay the money into Court, to await the 
further decree of the Court, is proper, or at least there 
is no error in such a decree to the prejudice of the de- 



CJoDB OF Civil Procedure. 233 

fendants. — Hunter & Davis vs. Lcvan and wife, 11 
Cal., p. 11. 

36. Stranokr in Ikterkst.— a mere stranger, who 
voluntarily pays money due on a mortgage, and fails 
to take an assignment thereof, but allows it to be can- 
celed and discharged, cannot afterwards come into 
equity, and in the absence of fraud, accident, or mis- 
take of fact, have the mortgage reinstated, and him- 
self substituted in the place of the mortgagee. — Guy 
vs. Du Uprey, 16 Cal., p. 195. 

37. Parties Plaintiff in Suit of Injdncton 
Bond. — If several parties are severally in possession of 
and cultivating in separate parcels a tract of land, 
and are sued jointly in ejectment to recover possession 
of the whole tract, and an injunction is obtained 
restraining them jointly from taking off the crops, 
these parties cannot maintain a joint action for dam- 
ages on the injunction bond, provided their damages 
are not joint. They can maintain a joint action for 
such damages only as are joint, such as attorney's fees. 
Fowler vs. Frisbio, 37 Cal., p. 34. 

38. Action or Injunction Bond for several 
Damages. — The fact that the plaintiff brings a joint 
action against several persons as trespassers, and ob- 
tains an injunction against them jointly, does not estop 
him, in an action brought against him on the injunction 
bond, &om showing that the damages were several, 
and from claiming that they cannot maintain a joint 
action for several damages. — Fowler vs. Frisbie, 37 
Cal., p. 34. 

39. Party Plaintiff in Action for Deceit.— An 
action for deceit in the sale of land to which the grantor 
had no title, should be brought by all the grantees 
jointly, unless there has been a conveyance of the 
cause of action to the plaintiff. A conveyance by one 
of the grantees to the others of his interest in the lafid, 
does not assign the cause of action for deceit, so as to 
enable the assignees to sue for the deceit in their names. 
Lawrence vs. Montgomery, 37 Cal., p. 183.  

40. Plaintiffs in Suit upon Covenants in a 
Deed. — All the grantees should join as plaintiffs in an 
action upon either a direct or implied covenant in a 
deed, that the grantor has not sold or incumbered the 
land, or that he is seized of and has a right to convey 
the ^me. A deed of the larid by one of the grantees 
to another, does not convey to him the cause of action 
upon such covenant. — Lawrence vs. Montgomery, 87 
Cal., p. 183. 



30 — Vol. I. 



234 OoDB OF Civil Procedubb. 

41. Pabtieb hayiko a Pabt Inticbest must bs 
Joined.— All the parties havinj; a part interest in the 
Bubject matter should be joined as plaintiffs, but the 
defect ;nust be taken advantage of by answer or appor- 
tionment of damages, where it does not appear on the 
face of the complaint. — Whitney ys. Stark, 8 Cal., p. 
514. 

42. CONSTBUCTITS PaBTIEB IK ACTION UPON BOKB. 

In an action upon a bond or written undertaking there 
can be no constructive parties jointly liable with the 
proper obligors. — Lindsay vs. Flint, 4 Cal., p. 88. 

Who m«r 379. (§ 13.) Any person may be made a defend- 
defendaots. ant who has Or claims an interest in the controversy 
adverse to the plaintiflf, or who is a necessary party to 
a complete determination or settlement of the ques- 
tion involved therein. And in an action to determine 
the title or right of possession to real property which, 
at the time of the commencement of the action, is in 
the possession of a tenant, the landlord may be joined 
as a party defendant. 

Note.— 1. Parties united in Interest. — All 
parties united in interest should be joined. — See Sec. 
382, post. 

2. Tenants in Common.— One or more may be de- 
fendants.— See Sec. 884, post; also, Sec. 378, ante, note. 
See, also, Sec. 382, post. 

8. When one Party mat defend eor aix.— 
See Sec. 382, post. 

4. Married Women.— See Sec. 370, ante. 

5. Executor, Administrator, etc.— See Sec. 869, 
ante. 

6. Infants, Guardians, etc.— See Sec. 372, ante. 

7. Trustees of Express Trust.— See Sec. 369, 
ante, 

8. Partners.— May be sued in firm name.— Sec. 388, 
post. 

9. Actions to Quiet Title.— See Sec. 788, post. 

10. Personal Beprebentatiyes and Successors 
IN Interest.— See Sec. 385, post. 

11. Parties seyerIllt Liable upon the same 
Obligation.— See Sec. 383, post. * 

12. If a necessary Party will not consent 
to be joined as Plaintiff, he may be made de- 
fendant. — See Sec. 382, post. 

13. Substitution of another Party as Ds|fBNi>- 



Code or Ciriii Procedubs. 



285 



ANT.— See Sec. 386, ifost. See, also, Sec. 389, party 
desiring to be made a defendant. 

14. Intekyenobs.— See Sec. 387, post. 

15. Action against State.— The State cannot be 
sued.— People vs. Talmage, 6 Cal., p. 266. 

16. Construction of Section as to EjecAient 
Suits— Former Law as to Landlord and Tenant 
WHEN Parties to Ejectment Suit Modified. — 
The last sentence — **and in an action to determine the 
title or right of possession to real property, which, at 
the time of the commencement of the action, is in the 
possession of a tenant, the landlord may be joined as a 
party defendant,'' was added to avoid the rule laid 
down in Dimick vs. Deringer, 32 Cal., p. 488, that 
" when the premises are in possession of a tenant, the 
tenant is, and the landlord is not, a proper party 
defendant." All who have given the subject any con- 
sideration will concede that the plaintiff ought to have 
the right to make the landlord a party to the action, 
and to bind him by the judgment, otherwise he would, 
in every such case, be driven to two actions to deter- 
mine what could as well be settled in one. The addi- 
tional clause changes, to a great extent, the construc- 
tion heretofore given to this section (Practice Act, Sec. 
13) by our Courts. The reasons for the change are 
apparent} and attention had long since been called to 
its necessity by our Supreme Court*. In Valentine vs. 
Mahoney, 37 Cal., p. 393, the Court say: "It was 
decided at an early day in this Court that the provision 
of this section, that *any person may be made a de- 
fendant who has or claims an interest in the contro- 
versy adverse to the plaintiff,' was not applicable to 
actions of ^ectment. — Gamer vs. Marshal, 9 Cal., p. 
270; see, also, Hawkins vs. Kichert, 28 Cal., p. 534. 
And that construction has prevailed to the present 
time. But it is readily seen that in all cases in 
which the defendant, is holding under a lease, and 
the lessor's title is in bsue, it is proper, if not 
necessary, that the latter should have an oppor- 
tunity to participate in the defense, for no one is 
as competent to present and defend his title as he. 
The landlord having been in possession and having 
transferred it to the tenant, ought not to be deprived of 
the possession at the expiration of the term by proceed- 
ings in which he could take no part. And, on the other 
hand, the party holding the true title might be kept out 
of possession for years, should the person claiming the 
adverse title lease the premises to different persons for 
such short terms that the tenaocy of any one would 



236 Code of Civil Procedure. 

expire before a suit against him could be prosecuted to 
final judgment. But this construction of that section 
has been too long maintained to be departed from by 
the Courts, and if a change in the rule is desirable, 
or necessary, it must come from the Legislature. — ^Id. 
Considerations of the character alluded to have in- 
duced the Courts to give some regard to the rights and 
Ix}sition of the landlord, and it is held that when the 
tenant has notified the landlord of the pendency of the 
action, and has permitted him to appear and defend-in 
the tenant's name, the tenant cannot interfere with any 
subsequent proceedings to the pr^udice of the land- 
lord. — See Dutton vs. Warschauer, 21 Cal., p. 619; 
Calderwood vs. Brooks, 28 Cal., p. 156; Dimick vs. 
Deringer, 32 Cal., p. 488. In Dutton vs. "Warschauer, 
although the opinion of Mr. Chief Justice Field was 
not expressly concurred in by Mr. Justice Cope and 
Mr. Justice Norton, it is apparent that the case is 
• authority for the position above stated, from the fBuct 

that the tenant, who was the defendant, executed a 
release of errors, and that notwithstanding this the 
Court, at the instance of the landlord of the defendant, 
reviewed the cause and reversed the judgment. If the 
landlord, though not nominally a party to the Tecord, 
when once permitted by the tenant to appear and de- 
fend the action, can insist upon the right to conduct the 
defense from that point, this right cannot spring from 
the notice from the tenant to assume the burden of the 
defense, but proceeds from the &ct 4hat he will be af- 
fected by the judgment. The judgment is conclusive, 
both upon the landlord and tenant, in a subsequent 
action between them involving the issue of eviction of 
the tenant by virtue of the judgment. — Wheelock vs. 
"Warschauer, 21 Cal., p. 309; Wheelock vs. 'Wars- 
chauer, d4 Cal., p. 265. And this is another instance 
in which the judgment binds others than the parties to 
the record and their privies. A possible future contro- 
versy between the landlord and tenant was not the only 
or the principal purpose in view in securing to the land- 
lord the right to defend the action in the tenant's name» 
but it was that the issue between the plaintiff's and the 
landlord's title might be litigated and determined. — 
Valentine vs. Mahoney, 37 Cal., p. 393. The change 
made materially modifies the decisions of the Supreme 
Court as to proper parties to an ejectment suit. Amon^ 
the decisions thus modified, to some extent at least, are 
the following: Winans vs. Christy, 4 Cal., p. 70; Bitchie 
vs. Dorland, 6 Cal., p. 33; Oamer vs. Marshall, 9 Cal., 
p. 268; Waring vs. Crow, 11 Cal., p. 366; San^^n vs. 



Code of Civil Procedure. 237 

Ohleyer, 22 Cal., p. 200; Hawkins vs. Reichert, 28 Cal., 
p. 535; Bimick vs. Deringer, 32 Cal., p. 489; Valentine 
vs. Mahoney, 37 Cal., p. 393. And this modification 
extei^ also to other cases. The rule of law laid down 
by the Supreme Court heretofore has been, that eject- 
ment was a possessory action, and must be brought 
against the occupant; it determines no rights but those 
of possession at the time, and it matters not who has, 
or claims to have, the title of the premises. — Gkimer vs. 
Marshall, 9 Cal., p. 268; Burke vs. Table Mountain 
Water Co., 12 Cal., p. 403; Dutton vs. Warschauer, 21 
Cal., p. 609; Fogarty vs. Sparks, 22 Cal., p. 148; Owen 
vs. Fowler, 24 Cal., p. 192; Lyle vs. Rollins, 25 Cal., p. 
440; Hawkins vs. Reichert, 28 Cal., p. 534; Clink vs. 
Cohen, 13 Cal., p. 623. 

17. Parties to a Foreclosure Suit.— It has been 
held, in an action for the foreclosure of a mortgage, 

if the creditor, the debtor, and the title to the mort- • 
gaged premises are before the Court, it has jurisdiction 
of the case, though there may be other holders of dis- 
tinct liens who might have been made parties to the 
suit, and were omitted. — Ha3rward & Co. vs. Steams, 
89 Cal., p. 58. 

18. A Dependant ts Possession, not directly inter- 
ested in the question in litigation between other parties 
to the action, should not be affected by the results of 
such litigation. — Welton vs. Palmer, 39 Cal., p. 456. 

19. Foreclosure of Mortgages. — In actions to 
foreclose mortgages, all persons interested should be 
made parties, and as to who should be joined as defend- 
ants, see Burton vs. Lies, 21 Cal., p. 87; Boggs vs. 
Hargrave, 16 Cal., p. 559; Goodenow vs. Ewer, 16 Cal., 
p. 461; Horn vs. Jones, 28 Cal., p. 194; De Leon vs. 
Higuera, 15 Cal., p. 483; Montgomery vs. Tutt, 11 
Cal., p. 307; Luning vs. Brady, 10 Cal., p. 265; Hocher 
vs. Reas, 18 Cal., p. 650; Bludworth vs. Lake, 33 Cal., 
p. 255; id., 33 Cal., p. 265; Cai^entier vs. Williamson, 
25 Cal., p. 159; Belloc vs. Rogers, 9 Cal., p. 123; Fal- 
lon vs. Butler, 21 Cal., p. 24; Skinner vs. Buck, 29 
Cal., p. 253; Eastman vs. Thurman, 29 Cal., p. 382; 
Heyman vs. Lowell, ^ Cal., p. 106. All persons in- 
terested in the premises prior to a suit brought to 
foreclose a mortgage, or to enforce a mechanic's lien, 
whether purchasers, lien-holders, devisees, remainder 
men, reversioners, or incumbrancers, must be made 
parties, otherwise their rights will not be affected. Per- 
sons who acquire interests by conveyance or incum- 
brance after suit brought need not be made parties; 
and who are and who are not proper parties to a fore- 



238 Code of Civil Procedure. 

closure suit, is carefully discussed in Whitney vs. Hig- 
gins, 10 Oal., p. 547, and authorities there cited. A 
tenant need not, from the mere fact of his tenancy, be 
made a party to the foreclosure «uit. — ^McDermott vs. 
Burke, 16 Cal., p. 580. 

20. Community Property. — Where the community 
property of husband and wife, or the separate property 
of the wife, is iJie subject of an action for foreclosure. — 
See Kohner vs. Ashenauer, 17 Cal., p. 578; Revalk vs. 
Kraemer, 8 Cal., p. 66; Marks vs. Marsh, 9 Cal., p. 96; 
Powell vs. Ross, 4 Cal., p. 197; see note to Sees. 370 
and 371, ante. 

21. Equitable AcTioyB.— All persons interested 
legally or beneficially should be made parties. — See 
Wilson vs. Castro, 81 Cal., p. 420, commented on in 
note to Sec. 378, ante. 

22. Trusters and Assignees. — If a debtor assigns 
• his property to trustees, to be by them sold, and pro- 
ceeds divided pro rata among the creditors, one cred- 
itor cannot, after the property has been converted into 
money, maintain an action against the trustees ibr an 
accounting and for judgment for his pro rata share, 
without making the other creditors parties and the 
assignor a defendant.— McPherson vs. Parker, 30 Cal., 
p. 455, Where A. owed plaintiff, and conveyed his 
property to B., to be sold for his benefit, and drew an 
order in fkvor of plaintiff on B., who accepted it, and it 
was charged that B. had subsequently conveyed a por- 
tion of the property to A., without consideration, pray- 
ing th&t B. be compelled to execute the trust in favor 
of plaintiff. Held: that A. was a proper and necessaiy 
party to the action. — Lucas, Tnrner & Co. vif. Payne, 
7 Cal., p. 02. In an action by one of several ceatuis 
que trust, to declare and enforce an implied trust in 
relation to land, all the peiBons who are entitled to, or 
claim to be entitled to, a portion of tAie trust estate, are 
proper parties defendant.— Jenkins vs. Prink, 30 Cal., 
p. 586. 

23. AssiGNEiSS.— Hie vendor, or the assignee of the 
rights and clainis of the vendor, is not bound to know 
every assignee, though they were numerous.— True- 
bddy vs. Jacobson, 2 Cal., p. 286. 

24. Parties to Action bettteen Mininq Part- 
NEtis, AND to Dissolve Mininq Partnership. — 
Where two of three partners in a mine make a con- 
tract with a person not interested in the same, by 
which he becomes entitled to a share of their interests, 
and a like share of the profits of their interests, the two 
are the dnly necessary parties defendant in an action 



i 



f 



Ck)DB OF Civil Procedure. 289 

brought by the person they contract with, to deter- 
mine his right to a share in the mine and a correspond- 
ing share of the profits on their interest. But in an 
action to take account o^a mining partnership and 
dissolve the same, and sever the interests of the sev- 
eral partners, all those owning interests in the partner- 
ship are necessary parties. — Settembre vs. Putnam, 30 
Cal., p. 490 (syllabus). 

25. Pebsons hot made Parties not ayfectsd by • 
Suit. — The rights of a third party cannot be deter- 
mined or impaired in any suit between two other par- 
tite.—Biddle Boggs vs. Merced Mining Co., 14 Cal., 
p. 279. 

26. Pabties to Actiok to Enjoin Issuance of 
County Bonds, etc. — In an action to enjoin the issu- 
ance of bonds, it may be necessary that some of the 
peKons to whom the bonds are to be issued should be 
joined as defendants. — See Hutchinson vs. Burr, 12 
Cal., p. 103; Patterson vs. Supervisors of Yuba Co., 
12 Cal., p. 105. 

27. Attobney Joined with his Client, when.— 
Where there has been fraud in obtaining a judgment, 
if the attorney is a party to the fraud he may be joined 
with his client as a defendant, in an action to set aside 
the judgment. — Crane vs. Hirshfelder, 17 Cal., p. 467. 

28. Unknown Defendant.— When the name of 
the defendant is unknown fictitious name may be usedy 
etc.— See Sec. 474, post. 

29. Real Estate may be made a party in actions 
in rem, aa for collection of taxes, etc. — See People vs. 
Rains, 28 Cal., p. 131. 

80. Pbincipal and Agent, ob Attobney.— When 
the principal, or when the agent, is liable. — See En- 
gels vs. Heatley, 5 Cal., p. 136; Haskill vs. Cornish, 
18 Cal., p. 45; McDonald vs. B. R. & A. W. Mining 
Co., 13 Cal., p. 221; Shaver vs. Ocean Mining Co., 21 
Cal., p. 45; Love vs. S. N. L. W. & M. Co., 82 Cal., 
p. 639; Hall vs. Crandall, 29 Cal., p. 568. 

31. Actions against Counties, Sufsbvisobs, etc. 
See Sec. 878, ante, and note. If an action against or 
for a county, it must be in the name of the county, not 
in the name of the people. — Smith vs. Myers, 15 Cal., 
p. 83; McCann vs. Sierra County, 7 Cal., p. 121; Price 
vs. Sacramento County, 6 Cal., p. 254; see, also, how- 
ever. Oilman vs. Contra Costa County, 8 Cal., p. 52; 
Hastings vs. City and County of San Prancisco, 18 
Cal., p. 49. Hie right to sue a county is not confined 
to actions of tort, malfeasance, etc., but extends to all 
accoonta afte^ their presentation to the Board of Super- 



I 



240 Code of Civil Procedure. 

visors. — People vs. Supervisors, 28 Cal., p. 431. But 
the account or claim, of whatever nature, ^ust have 
been first presented to the Supervisors, and rejected 
before any action thereon can bo maintained against 
the county. — McCann vs.Sierra County, 7 Cal., p. 121. 
The agents of the county and its officers may be joined 
as defendants in certain cases. — McCann vs. Sierra 
Co., 7 Cal., p. 121. At least a majority of the mem- 
bers of a Board of Supervisors should be made defend- 
ants in an action brought to enjoin the Board /rom 
purchasing property for the use of the county, — Trinity 
County vs. McCammon et als., 25 Cal., p. 119; see, 
further, Political Code, Sec. 4000. 

32. Joinder of Parties who have no Joint 
Interest. — It seems that the joinder of two persona 
as co-defendants, who have no joint interest in the sub- 
ject matter of the suit, and are und^r no joint liability, 
will, unless the mistake be corrected in the Court 
below, be error. — Sterling vs. Hanson, 1 Cal., p. 478. 

33. Accommodation Grantees and Fictitious 
Depositaries of Title— When may be madk 
Parties. — It was shown that some of the parties were 
mere accommodation grantees and fictitious deposi- 
taries of title; but it was held that they have a right 
to be heard at law in their own defense, before Courts 
of chancery can pronounce definitely on their claims, 
however false they may appear, inter alias. — Kiiowles 
vs. Inches, 12 Cal., p. 212. 

34. Action against one Attaching Creditor 
BY A subsequent ATTACHING CREDITOR.— Property 
was seized under two attachments, and was claimed by 
a third party. Both attaching creditors indemnified 
the Sheriff, who proceeded to sell it, and paid the pro- 
ceeds to the first attaching creditor, the amount not 
equaling his judgment; and afterwards the party 
claiming the property obtained judgment against the 
Sheriff for the value of the property. Held : that the 
recourse must be had against the first attaching^ 
creditor, for whose benefit the property was sold. la 
such a case the attaching creditors do not stand in the 
position of joint trespassers, the seizure of the second 
being subject to the first. — Davidson vs. Dallas, 8 Cal., 
p. 227. 

35. Actions against Contractors by third par- 
ties FOR DAMAGES TO PROPERTY OF SUCH PARTIES. — 

Where parties employed architects, reputed to be 
skilled in their profession, to construct at a designated 
point on a creek a dam, or embankment, of certain 
specific dimensions, capable of resisting all floods and 



Code of Civil Procedure. 



241 



freshets of the stream for the period of two years, and 
to deliver it completed by a given time, and before the 
embankment was completed it was broken by a sudden 
fresliet, and a large body of water, confined by it, 
rushed down the channel of the stream, carrying 
away and destroj'ing in its course the store of plaintiffs, 
with thpir stock of merchandise. The employers 
exercised no supervision, gave no directions, furnished 
no materials, nor had they accepted the work. Plain- 
tiffs brought suit to recover the damage sustained by 
them against the employers and contractors. Held: 
that the latter alone were liable. The relation of the 
parties is that of independent contractors. The rela- 
tion of master and servant, or superior and subordinate, 
did not exist between them, and therefore the doctrine 
respatideat superior does not apply to the case. — Bos- 
well vs. Laird, 8 Cal., p. 469. 

36. Actions on Contracts.— In an action on a con- 
tract only the contractors therein can be made parties. 
See Barber vs. Gazalis, 30 Cal., p. 92. 

37. Actions against Public Officers. — A pub- 
lic officer, who stands in the relation of agent of the 
Government, or of the public, is not personally liable 
upon contracts made by him as such officer, and within 
the scope of his legitimate duties; but this reason does 
not apply when neither the Government nor the public 
in any way can be considered or held responsible for a 
contract made by a person, although a public officer. — 
Bwinelle vs. Henriquez, 1 Cal., p. 392. 

38. Action for Malicious Prosecution. — Dreux 
vs. Dornee, 18 Cal., p. 83. 



^ 






380. In an action brought by a person out of pos- Partiee 

_ _ 1 . -, , . defendant 

session of real property to determine an adverse claim in an action 



to 



of an interest or estate therein, the person making ooJfljSJJJ 
such adverse claim and all persons in possession must to^rSa 
be joined as defendants. 



property. 



381. Persons claiming an interest in lands under Parties 

holding 

a common source of title may unite as plaintiffs in an title under 

*f ^ a common 

action against any person claiming an adverse interest J^hen*' 
therein, for the purpose of determining such adverse ™*^^***^ 
claim, or of establishing sucli common source of title, 




31— Vol. I. 






242 CoDB OP Civil Procedure. 

or of declaring the same to be held in trust, or for 
removing a cloud thereon. 

Note.— state. 1868, p. 15. 

1. Actions rsbpsctino Commok Pbopkktt-— Ac- 
tions for the diversion of the waters of ditches are in 
the nature of actions for the abatement of nuisance, 
and may be maintained by tenants in common in a 
joint action. — ^De Johnson vs. Sepulbeda, 5 Cal., p. 
151; Parke vs. Kilham, 8 Gal., p. 79. Tenants in com- 
mon in a mine may sue jointly to recover possession 
of all of their several undivided intereste. — ^Golber vs. 
Fett, ^ Cal., p. 481. And the executor of a tenant in 
common can be united with the surviving co-tenants. — 
Touchard vs. Keyes, 21 Cal., p. 202. A tenant in com- 
mon, employed as agent, may sue his co-tenant for the 
services rendered in respect to the land.-^Thompson 
vs. Salmon, 18 Cal., p. 6S2. . One of several tenants in 
common has a right to sue alone for his moiety. — Covil- 
laud vs. Tanner, 7 Cal., p. 38. 

2. Action of Ejectment wherx there abe sev- 
eral Co-tenants. — In this State, two or more of sev- 
eral co-tenante cannot be joined as parties in an action 
of ^ectment. The rule which determines whether ten- 
ants in common should sue jointly or severally depends 
upon the nature of their interest in the matter or thing 
which is in controversy. For injuries to their common 
property, as trespass, qtiare clausum /regit, or nui- 
sance, etc., they should all be joined; but they must 
sue severally in real actions, generally, as they all have 
separate titles. — See Coke's Litt., p. 197; De Johnson 
vs. Sepulbeda, 5 Cal., p. 151. 

Partite 382. (§ 14.) Of the parties to the action, those 

whento * who are united in interest must be joined as plain- 
tiffs or defendants; but if the consent of any one who 
• should have been joined as plaintiff cannot be ob- 

tained, he may be made a defendant, the reason 
thereof being stated in the complaint; and when the 
wh«none question is one of a common or general interest, of 

4, or more 

•' defMi'd for' many persons, or when the parties are numerous, and 

the whole. ^ jg impracticable to bring them all before the Court, 

fi one or more may sue or defend for the benefit of all. 

^" NoTK.—l. Joint Associations composed ov many 

Individuals. — In cases of joint associations which con- 
^ sist of a great many individuals, and when it would be 

y 
•J 



Code op Civil Procedure. 248 

very inconvenient or almost impossible to join them, 
one or -more may sue or defend for all. — See Van 
Schmidt vs. Ilunting^n, 1 Gal., p. 55; Gorman vs. 
RuAsell, 14 Cal., p. 531. 

2. Action by Stockholdeb against Corpora- 
tion AND crrtain Trustees tor nbolioence on 
part of Trustees. — An action was brought to com- 
pel an account and obtain a settlement of the affairs of 
a corporation. The plaintiff was a stockholder, and 
the corporation and four of the Trustees were made 
defendants. It was alleged that these Trusfiees were 
the owners of stock sufficient to enable tlfem to control 
the business of the company, and various acts of fraud 
and mismanagement were charged against them in the 
complaint. It was decided that a stockholder could 
maintain an action in equity for an account (Aug. & 
Ames on Corp., Sec. 312; Robinson vs. Smith, 3 Paige 
Ch. R., p. 222), and that where no objection was inter- 
posed that all the stockholders were not made parties, 
the Trustees and corporation could be sued alone and 
made the only parties. The Trustees will bo compelled 
to make good any loss occasioned by their negligence 
or improper conduct.— See Neall vs. Hill, 16 Cal., p. 
151. 

8. Decree in Action brought bt one for him- 
self AND ON BEHALF OF OTHERS. — Where an action 
is brought by one of several persons, claiming title from 
a common source, on his own behalf and in behalf of 
all others interested in the same manner as himself, to 
set aside a deed executed to others by the same grantor 
under whom plaintiff claims, on the ground of fraud, 
the parties named in the complaint for whose benefit 
the action is brought, are entitled to the benefit of the 
decree declaring the deed fraudulent.— Hurlbutt vs. 
Butenop, 27 Cal., p. 50. • 

4. Partner Suing for injury to Partnership 
Property and making Copartner a Defendant. 
When one partner sues for an injury to the partnership 
property, and makes his co-partner a defendant for 
want of his consent to join as plaintiff, the recovery 
must be entire for the whole injury. The law will not 
tolerate a division of a joint right of action into several 
actions. The whole cause of action must be deter- 
mined in one, and thus avoid a multiplicity of suits. 
In such a case the partner recovering is* liable to 
account to his co-partner defendant, and the latter is 
interested immediately in the event of the suit. — Night- 
ingale vs. ScannelU 6 Cal., p. 509. But this case did 
not decide that such a non-joinder of the plaintiffs 



244 Code of Civil Procedure. 

"would be permitted under the Code. 1?he question was 
not raised. — Id. 

5. Section applies only to Suits ik Equity. — 
It was held that this section was intended to apply to 
suits in equity and not to actions at law. — ^Andrews vs. 
Mokelumne Hill Co., 7 Cal., p. 333. 

Plaintiff. 383. (§ 15.) Persons sevemlly liable upon the 

may sue m ^ ' ^ r 

thediffoi? same obligation or instrument, including the parties 
to commOT- *^ bills^of exchange and promissory notes, and sureties 
ciai paper. ^^ ^^ same OP Separate instruments, may all or any 

of them be included in the same action, at the option 

of the plaintiff. 

Note.— 1. Plaintiff mat elect which one or 
what number of many persons severally liable 
HE WILL Sue. — This section changes the common law 
rule, that one or all, and not any intermediate number, 
may be sued. Under this section a plaintiff may, at 
his election, sue one or more, or a]l the i)erson3 
severally liable, upon the same obligation or instru- 
ment. — People vs. Love, 25 Cal., p. 526; Steams vs. 
Aguirre, 6 Cal., p. 183; see, also, People vs. Frisbie, 
18 Cal., p. 402; Lewis vs. Clarkin, 18 Cal., p. 399. 

2. Judgment may ue for or against one or 
SEVERAL Defendants, and otherwise as to the 
OTHER Defendants.— See Sees. 578, 579, post. — 
Lewis vs. Clarkin, 18 Cal., p. 399; People vs. Frisbie, 
18 Cal., p. 402. 

3. Indorskrb — When jointly and not sever- 
ally Liable. — A note was payable to A., and pre- 
viously to its delivery to the payee was indorsed by 
B. and C. These parties were accommodation in- 
dorscrs. An indorsement was made by two persons 
upon an agreement with each other that they would 
each become surety', if the other would; or, in other 
words, that they would become sureties together. It 
was decided that the indorsers were guarantors (see 
facts), and were jointly, and not severally, liable to 
payee, etc. — Brady vs. Reynolds, 13 Cal., p. 31. 

4. There must be express words to create a 
Several Liability.— See Chitty on Contracts, p. 
96; 1 Chitty »8 Plead., p. 41; Brady vs. Reynolds, 13 
Cal., p. 32. 

5. Judgment against one is Bar to Action 

AGAINST other PARTIES ON A JoiNT CONTRACT. — A 

judgment ogainst one on a joint contract of several is 
a bar to an action against the others.— Smith vs. Black, 



Code of Civil Procedure. 245 

9 Serg. & Kawl., p. 142; Ward vs. Johnson, 13 Mass., 
p. 148. When the cause of action is joint, and not 
joint and several, the entire cause of action is merged 

m 

in the judgment.— See, also. Pierce vs. Kearney, 5 
Hill, p. 86; Taylor vs. Claypool, 5 Black., p. 657; 
Brady vs. Reynolds, 13 Cal., p. 33. 

6. Administrator not Joined with Survitor 
ON Several Contract. — In cases of joint and sev- 
eral contracts, an administrator cannot be joined with 
the survivor, for one is charged de bonis tcstatoriSf and 
the other de bonis prqpriis. — Humphreys vs. Crane, 5 
Cal., p. 173. 

7. Judgment in Suit on Joint and Several 
Bond. — In an action upon a joint and several bond, 
where all the persons who sign it are made defendants 
in the complaint, the plaintiff may go to trial, if he 
elects so to do, before all the defendants are served, 
and may dismiss as to some of the defendants, and 
take judgment against the others. — People vs. Evans, 
29 Cal., p. 429. 

8. When a Bond is Joint and not Several. — 
A bond in this form: Know all men that we, A. as 
principal, and B„ C, and D. as sureties, are bound 
untd the people in the several sums affixed to our 
name.«, viz; B., in the sum of ten thousand dollars; 
C, in the sum of five thousand dollars; D., in the 
sum of three thousand dollars, etc., * for the which 
payment, wull and tnily to be made, we severally 
bind ourselves, our heirs,' etc. — and signed and 
sealed by the obligors, is held, to be an instrument em- 
bracing several distinct obligations, each of which is a 
joint obligation of the principal and one surety, and 
not joint and several. — People vs. Hartley, 21 Cal., p. 
585. 

9. Suit on Separate Indemnifying Bonds for 

 

THE SAME Attached Property. — A Sheriff seized 
goods on two attachments for different plaintiffs. The 
plaintiffs in the attachment suits executed to the Sher- 
iff separate indemnifying bonds. It was decided that 
there is no joint liability between the plaintiffs to the 
Sheriff. Each bond must be sued on as an indepen- 
dent obligation. — White vs. Fratt, 13 Cal., p. 521. 

10. Action on Note secured by Mortgage. — The 
maker executes and delivers to the same person a 
promissory note, and a mortgage to secure the same, 
and this person indorses the note and assigns the mort- 
gage to a third person, who brings an action on the 
note and to foreclose the mortgage. It was held that 



246 



Code op Civil Procedure. 




Tenants in 
<x>nimon« 
etc., may 
sever in 
bringing or 
defending 
actions. 



Aotion, 
when not 
to abate 
by death, 
marriage, 
or other 
disabiUty. 



Proceed- 
ings in 
such case. 



the indorser and maker of the note were properly 
joined as defendants. — Eastman vs. Tunuan, 24 Cal., 
p. 379. 

884. All persons holding as tenants in common, 
joint tenants, or coparceners, or any number less than 
all, may jointly or severally commence or defend any 
civil action or proceeding for the enforcement or pro- 
tection of the rights of such paity. 

Note.— Stats. 1867, p. 62. 

385. (§ 16.) An action or proceeding does not 
abate by the death, marriage, or other disability of a 
party, or by the transfer of any interest therein, if the 
cause of action survive or continue. In case of the 
death, marriage, or other disability of a party, the ^ 
Court, on motion, may allow the action or proceeding 
to be continued by or against his representative or 
successor in interest. Li case of any other transfer 
of interest, the action or proceeding may be continued 
in the name of the original party, or the Court may 
allow the person to whom the transfer is made to be 
substituted in the action or proceeding. 

Note.— 1. Construction of Section. — The rule as 
to the fight of a third person under our statute to be 
made a party, where he is directly interested in the 
subject matter in litigation, as it existed ujxtn this sub- 
ject; both at law and in chancery, has been altered by 
the Practice Act of this State, by the 16th and 17th 
sections of which it is provided that, in case of the 
transfer of any interest in the action during the pen- 
dency the suit may be continued in the name of the 
original party, or the Court may allow the person to 
whom the transfer is made to be substituted in the 
action. Again, it is provided that the Couil sliall 
order parties to be brought in, if there cannot be a 
complete determination of the action without prejudice 
to their interests. — Brooks vs. Hager, 5 Cal., p. 282. 

2. Judgment for or against as Party dk- 
CKASED. — See Sec. 669, post; see, also, Judson vs. 
Love, 35 Cal., p. 464. 

3. Transfer of cause of Action in Ejectuknt. — 
The transfer by the plaintiff in ejectment of the de- 



CoDB OF Civil Procbdurb^ 44T 

• 

manded premises pending the action is a transfer of 
the cause of action within the provisions of this section, 
and the action may be continued in the name of the 
original plaintiff.— Hoss vs. Shear, 30 Cal., p. 468. 

4. Tbansfer or Plaintiff'h Interest in cause 
ow Action. — If the plaintiff has conveyed the demanded 
premises pending ejectment, the Court, by the consent 
of both the plaintiff and vendee, may make an order 
continuing the action in the name of the original plain- 
tiff.—Moss vs. Shear, 30 Cal., p. 468. 

5. Plaintiff mat Bkcoyeb after sale of Land. 
If the action is continued as above stated in the name 
of the original plaintiff, notwithstanding the premises 
have been transferred by him, he may recover judg- 
ment for both possession and the rents and profits. — 
Moss vs. Shear, 30 Cal., p. 468. 

6. Death of one of several Respondents.— If 
one of several respondents died before notice of appeal 
was filed, a motion to dismiss the appeal as to him must 
be granted. — Shartsier vs. Love, 40 Cal., p. 96; Judson 
vs. Love, 35 Cal., p. 463. 

7. Husband cannot recover Homestead on 
DEATH OF Wife. — If the wife die after an action has 
been commenced by herself and husband for the home- 
stead, a recovery by the husband is defeated, although 
his right to recover existed at the time when the action 
was begun. — Gee vs. Moore, 14 Cal., p. 472, overruling 
Taylor vs* Hargous, 4 Cal., p. 273; Poole vs. Gerard, 
6 Cal., p. 71; Revalk vs. Kraemer, 8 Cal., p. 73. 

8. Death of party to a Divorce suit abates 

ACTION— PaRTITIONER's COMMUNITY PROPERTY.— A 

» 

supplemental decree in the divorce suit, after death of * 
husband, under which the plaintiff claims to be the 
owner of the whole land sued for, was, in our judg- 
ment, null and void, as against the heirs at law. By 
the death of the husband the suit abated for all the 
purposes of further judicial action therein on the sub- 
ject of partitioning the common property, and the 
Court had no jurisdiction to a^udge that the property 
should be sold and the proceeds divided without a 
revivor as to the heirs. No such revivor was had, and 
the interests of the heirs was, therefore, unaffected by 
the supplemental decree, and the transactions under 
it.— Ewald vs. Corbett, 32 Cal., p. 499. 

9. Where, durinc^Action in name of Husband 
AND Wife, they are Divorced.— An action began 
by husband and wife in their joint names, does not 
abate in consequence of a divorce.— Calderwood vs. 
Pyser, 31 Cal., p. 835. 



248 Code op Civil Proceduke. 

10. CoKVEYANCn: OF dbnTanded Land pexdikg 
Suit. — The conveyance of the demanded premises, by 
the plaintiff in ejectment, pending the suit, to a person 
not a party to the action, does not necessarily defeat 
the action. — Moss vs. Shear, 30 Cal., p. 468; Barstow 
vs. Newman, 34 Cal., p. 90. 

11. Continuation of Action in name of Execu- 
tor ON Death of Pakty. — What is a suflScient sug- 
gestion of death of principal, and a revival of the cause 
in the name of the executor. — See Gregory vs. Hayncs, 
21 Cal., p. 443. 

12. Death of Appellant after Argument of 
HIS CASE ON Appeal. — The death of an appellant 
after argument of his case upon appeal,* does not con- 
stitute any ground for delaying a decision or departing 
from the ordinary course of procedure, except as to 
the entry of the judgment which may be rendered. 
The entry should be of a da^' anterior to the appellant's 
death. — King vs. Dunn, 21 Wend., p. 253; Campbell 
vs. Mesier, 4 Johns. Ch., p. 335; Miller vs. Gunn, 7 
How. Pr. Rep., p. 159; Black vs. Shaw^, 20 Cal., p. 69. 

13. Death of Appellant previous to Argument 
ON Appeal. — The rule is different from that above 
stated if tlie death occurs previous to the argument; in 
that event further proceedings «an only be had upon 
leave given after suggestion of the death is made. — 
Black vs. Shaw, 20 Cal., p. 69. 

14. Defendants cannot change Plain'tiffs, — 
The substitution of one pers^on as plaintiff in place of 
another, in case of a transfer of the cause of action, is 
a matter which the defendant ciinnot move. It con- 
cerns only the plaintiff, or the person to whom the 
transfer is made. If the defendant desires to take ad- 
vantage of the transfer for any cause, he must do so by 
supplemental answer. As against a defendant, a plain- 
tiff has a right to stay in Court till his case has been 
tried.— Hestres vs. Brennan, 37 Cal., p. 385. 

15. Mode of showing the Death of a party 

AND substitution OF HIS LeGAL REPRESENTA- 
TIVES. — The death of a party pendente lite should be 
made known by suggestion of that fact to the Court, 
and the action continued by order of the Court against 
the representative of the party deceased, of which ho 
must be duly notified before he can be afiected by fur- 
ther proceedings in the action. — ^Judson vs. Love, 35 
Cal., p. 464. 

10. Suggestion of the Death of Party— Whkn 
IT may be made. — It is regular and proper to suggest 
the death of a party to an action in any Court, and at 



Code of Civil Procedure. 249 

any staple of the proceedings. And the death of a party 
occurring before the appeal taken may be shown in this 
Court by affidavit of the fact. — ^Judson vs. Love, 35 
Cal., p. 464. 

17. Death of the Defendant during tuk 
PENDENCY OF AN AcTioN. — In an action to recover 
judgment on a promissory note, the suggestion of the 
death of the defendant, and the substitution of his 
administrator, and the continuance of the suit against 
him, subjects the proceedings to such rules of the Pro- 
bate Act as are applicable to proceedings for the collec- 
tion of claims against an estate of a deceased person. — 
Myers vs. Mott, 29 Cal., p. 359. 

18. Judgment against Administrator enforc- 
ing Attachment Lien. — If the defendant dies after 
the service of summons and the levy of an attachment 
on his property, and before judgment, and the admin- 
istrator is substituted, and the action continued against 
him, the Court cannot render a judgment enforcing the 

lien of the attachment by a sale of the attached prop- ^ 

erty, and an application of the proceeds to the satisfac- 
tion of the demand.— Myers vs. Mott, 29 Cal., p. 359. 

19. Purchase of Property pending an Action 

TO recover possession of it. — One who buys land '^ 

during the pendency of an action to recover possession X 

of it, in which his grantor is a defendant, may there- '*^ 

after continue the defense in the name of his grantor, 
or may cause himself to be substituted in his place. — 
Mastick vs. Thorp, 29 Cal., p. 444. 






386. (§ 658.) A defendant against whom an action Another 

porson 

is pending upon a contract, or for specific personal ™^^H*tiid v 

property, may, at any time before answer, upon affi- diondant ^ 

davit that a person not a party to the action makes 
against him, and without any collusion with him, a 
demand upon the same contract, or for the same prop- 
erty, upon notice to such person and the adverse •% 
party, apply to the Court for an order to substitute ^ 
Buch person in his place, and discharge him from lia- 
bility to either party, on his depositing in Court the 
amount claimed on the contract, or delivering the 
property, or its value, to such person as the Court may 
direct; and the Court may, in its discretion, make the 

order. 

32— Vol. I. 




I 






250 Code of Civil Procedurb. • 

NoTB.— This is Sec. 658 of the Practice Act, taken 
from its place and inserted here because it relates to 
parties to actions. | 

When Tenant finds there abe Adverse 
Claimants to Property he has Rented. — When 
there are adverse Claimants to the property, a tenant 
should file a bill of interpleader, making them parties 
thereto, and offering to pay the rents into Court to 
abide its ultimate decisionv— McDevitt vs. Sullivan, 8 
Cal., p. 592. 

inteiven-^ 387. (§§ 659, 660, 661.) Any person may, before 
piaoorand ^^® trial, intervene in an action or proceeding, who 
how made, j^g^ g^j^ interest in the matter in litigation, in the suc- 
cess of either of the parties, or an interest against 
both. An intervention takes place when a third per- 
son is permitted to become a party to an action or 
proceeding between other persons, either by joining 
the plaintiff in claiming what is sought by the com- 
plaint, or by uniting with the defendant in resisting 
the claims of the plaintiff, or by demanding anything 
adversely to both the plaintiff and the defendant; and 
is made by complaint,* setting forth the grounds upon 
which the intervention rests, filed by leave of the 
Court and served upon the parties to the action or pro- 
ceeding, who may answer it as if it were an original 
complaint. 

Note.— 1. Iktkrvkntion may take place either 
BEFOBE OB AFTER IssuE JoiNED. — A party has the 
right to intervene in an action in case of the transfer of 
any interest during the pendency thereof, or when he is 
directly interested in the subject matter in litigation, 
and this can be done either before or after issue has 
been joined in the case. — Brooks vs. Hager, 5 Cal,, p. 
281. 

2. What Interest is necessaby to entitle 
Party to Intervene.— Before a party may intei^ 
vene, in an action between third parties, he must have 
such an interest in the matter in litigation of such a 
direct and immediate character that the intervenor will 
either gain or lose by the direct legal operation and 
effect of the judgment. It must be an intereirt created 
by a claim to the demand, or some part thereof, in suit 
or a claim to or lien upon the property, or some part 



Code of Civil Frocedubb. 



251 



thereof, which is the subject of litigation. — Horn vs. 
The Volcano Water Co., 13 Cal., p. 62; see, also, 
Montgomery vs. Tutt, 11 Cal., p. 307. 

3. Assignor or a Claim Bktaining an Interkst 

THEREIN MAY INTERVENE IN AN ACTION BY As- 

BiQNEE THEREON. — If R party assigns a claim abso- 
lutely, retaining, however, an interest in it, he may 
intervene to protect his interest in an action brought 
by the assignee to collect the same, and if he does not 
intervene, he is bound by the judgment.— Gradwohl 
vs. Harris, 29 Cal., p. 150. 

4. Who may Intervene in Foreclosure Suit. 
A simple contract creditor cannot intervene in a fore- 
closure suit. But judgment creditors, being as such 
subsequent incumbrancers, may intervene; and a Court 
may order them to be made parties by an amendment 
of the complaint, or on petition of intervention. — Horn 
vs. The Volcano Water Co., 13 Cal., p. 62. 

6. When co-tenants cannot Intervene in 
Action by one of the tenants in common.-t 
Where one tenant in common sues to recover posses- 
sion of the premises, and the damages sustained by the 
ouster, his co-tenants cannot intervene. — Donner vs. 
Palmer (Bradley intervenor), 23 Cal., p. 40. 

6. Subsequent Mortgagee no right of inter- 
vention in Action to enforce Lien.— A mort- 
gagor of a ditch subsequent to the lien has no absolute 
right to intervene in an action to enforce the mechan- 
ics' lien on the ditch. And when the suit had been 
pending some time, and the application to intervene 
was made just as plaintiff was taking judgment, the 
application was too late, and, therefore, properly re- 
fused.— Hocker vs. Kelley, 14 Cal., p. 164. 

7. Right to Intervene in a Suit where Prop- 
erty is Attached. — If the first attachment was 
fraudulently obtained and the debtor has not sufScient 
property to pay both claims, a subsequent attaching 
creditor who has his attachment levied on the property 
previously levied on by a prior attaching creditor, may 
intervene in the action between the first attaching 
creditor and the defendant. — Coghill & Co. vs. Marks, 
29 Cal., p. 673. 

8. Intervention by Judgment Creditors in 
Attachment Suits. — Judgment creditors can inter- 
vene in an attachment suit, and have the attachment 
set aside because as to them it was void. — Davis vs. 
Eppinger, 18 Cal., p. 378. 

9. Intervention by subsequent Attaching 
Creditors in Attachment Suit.— Where an at- 



252 



Code of Civil Procedure. 



tachment has been levied upon the property of a 
defendant, in an action to recover money, a subsequent 
attaching creditor may intervene, any time before 
judgment is entered, and dispute the validity of Uie 
first attachment. — Speyer vs. Ihmels, 21 Cal., p. 280, 
sustaining Davis vs. Eppinger, 18 Cal., p. 378, and 
Horn vs. Volcano Water Co., 13 Cal., p. 62. In a 
case like this, before the passage of this provision of 
the Code, and as doubtless may still be done, the pro- 
ceedings would liave been by a separate action, in the 
natuie of a bill in chancery, as in the case of Hayne- 
man vs. Dennenberg, 6 Cal., p. 376, or by a motion to 
the Court, as in Dix^ vs. Pollock, 8 Cal., p. 570. — 
Speyer vs. Ihmels, 21 Cal., p. 280, 

10. Owner of Lien subsequent to Mortgage 
MAY Intervene and plead Statute op Limita- 
tions AS to Mortgage. — If an action is brought to 
foreclose a mortgage barred by Statute of Limitations, 
one who has purchased or acquired a lien on the prop- 
erty subsequent to the mortgage has a right to inter- 
vene and plead the Statute of Limitations. — Coster vs. 
Brown, 23 Cal., p. 142. 

11. Intervention by Creditors in an Actiok 
ON A Fraudulent Note and Mortgage. — In an 
action on a note and mortgage, where creditors of 
the defendant intervened, alleging the note and mort- 
gage to be fraudulent as against them, the intervenors 
cannot prevent a judgment fur plaintiff against defend- 
ant. Tlie most they can claim is protection against the 
enforcement of the judgment to their pixyudice. — Horn 
vs. The Volcano Water Co., 13 Cal., p. 62. 

When Defendant alone can Object. — ^If the 
proceedings between the debtor and a prior creditor 
are not void, but voidable, the defendant can alone 
object. — Dixey vs. Pollock, 8 Cal., p. 570. 

12. Wife may Intervene in action to Fork- 
close Mortgage on Homestead..— The wife is a 
proper party defendant in a suit to foreclose a mortgage 
executed upon premises claimed as a homestead. If 
not made such a party, she may intervene, or, by per- 
mission of the Court, be allowed to file a separate an- 
swer.—Moss vs. Warner, 10 Cal., p. 297; Sargent vs. 
Wilson, 5 Cal., p. 504. See, also, Dillon vs. Byrne, 5 
Cal., p. 456. 

13. Intervention by County to Bbcoter Tax 
ON Property which is the subject of an Ac- 
tion. — A. had property deposited with B., which was 
taxed by the county and payment demanded of both 
A. and B., and it was held that in an action concerning 



Ck)DE OP Civil PROfiEDURB. 253 

the money, the county might intervene so as to recover 
the tax. — Yuba Co. vs. Adams, 7 Cal., p. 37, 

14. Intervention of same effect as com- 
MSNCiNQ AN ORIGINAL AcTXON.— In an action to 
foreclose a mechanic's lien, the interyenors having 
filed their intervention and become parties to the suit 
within the prescribed time and during the existence of 
the lien, the effect oC their position is precisely the same 
as if they had commenced an original action. — Mars 
vs. McKay, 14 Cal., p. 129. 

15. Petition of Intervenor treated as a Dec- 
laration OR Complaint.— See People vs. Talmage, 
6 Cal., p. 258. 

16. Onus probandi as to Action between 
Plaintiff and Intervenors. — "Where a subse- 
quent attaching creditor intervenes in an action for the 
purpose of setting aside an attachment issued therein, 
on the ground that there is no debt due from the de- 
fendant to the plaintiff, the allegations in the pleading 
on the part of the intervenor, traversing the complaint, 
have the same effect as denials in an answer, and 
require affirmative proof by the plaintiff of his cause 
of action, in default of which the intervenor will have 
judgment in his favor. — Spier vs. Ihmels, 21 Cal., p. 
280 (syllabus). 

17. Objection to Intervention in Trial below 
CANNOT BE MADE ON APPEAL.— An objection cannot 
he made on appeal for the first time that certain per- 
sons could not intervene in an action prosecuted in an 
in/erior Court. — McKenty vs. Gladwin, 10 Cal., p. 227. 

18. Decision of lower Court as to Right of 
Parties to Intervene cannot be Reviewed on 
MANDAArcs. — A motion for leave to intervene in an 
action, made at any stage of the proceedings, presents 
a judicial question the decision of which cannot be 
reviewed or controlled by the Supreme Court by man- 
damus, however erroneous it may be. — People vs. Sex- 
ton, 37 Cal., p. 532. 

19. Generally.— See Dutil vs. Pacheco, 21 Cal., p. 
441. 

388. (§ 666.) When two or more persons, asso- Associates 
dated in any business, transact such business under a aaed by 

" name of 

common name, whether it comprises the names of association. 
such persona or not, the associates may be sued by ^ 
such common name, the summons in such cases being 
served on one or more of the associates; and the judg- 



254 CoDB 09 Civil Procedtjml 

ment in the action shall bind the joint property of all 
the associates, in the same manner as if all had been 
named defendants and had been sued upon their joint 
liability. 

Note.— This is substantially Section 656 of the Prac- 
tice Act, inserted here as the appropriate place for it. 

1. ACTIOK MAY.BK BKOTJGHT AaAi:N8T A DeFKKI>- 
AKT, BTJT NOT FOB A PLAINTIFF, IN FiBM NaME. — 

Defendants may be sued in firm name, but an action 
cannot be brought by plaintiffs in firm name. — Gilman 
vs. Cosgrove, 22 Oal., p. 357. 

2. Plaintiff cannot Sue in the name or tele 
Firm. — A complaint should set forth the names of the 
individuals composing the firm as plaintifTs, if the 
action is intended to be in behalf of the individuals 
composing such firm. — Gilman vs. Cosgrove, 22 Cal., 
p. 357. 

3. Complaint in an Action against a Company 
BY ITS Company Name.— If the complaint does not 
show the existence of the conditions provided for in 
this section, and a judgment is rendered by de&ult, it 
is a debatable question whether or not the judgment is 
void. But if the conditions, as required by this sec- 
tion, appear in the complaint, and the summons was 
served on one of the members of the company, and 
judgment is had by default against the company, the 
judgment may be enforced against the joint property of 
the company. — Welch vs. Kirkpatrick, 80 Cal., p. 202- 

Court, 389. (§ 17.) The Court may determine any con- 

decide con- troversy between parties before it, when it can be done 

troversyor */ sr ? 

othOT par- without prejudice to the rights of others, or by saving 
brouditln. their rights; but when a complete determination of 
the controveray cannot be had without the presence of 
other parties, the Court must then order them to be 
brought in. And when, in an action for the recovery 
of real or personal property, a person not a party to 
the action, but having an interest in the subject 
thereof, makes application to the Court to be made a 
party, it may order him to be brought in, by the 
$ proper amendment. 

NOTB. — 1. ApPLICATIOK and C0N8TBTJCT10K OF SbO- 

TiON.— See Brooks vs. Hager, 6 Cal., p. 281; see note 



Code of Civil Prooedtjkb. 255 

No. 1 to Sec. 385, ante; and note No. 1 to Sec, 387, 
ante. 

2. Clattse additiokal to the Section as it stood 

BKVORX the AD01»TI0N OF THE CoDE OF CiVIL PRO- 
CEDURE. — The last sentence, commencing, "And when 
in an action for the recovery of real or personal prop- 
erty," etc., is a new provision. 

3. All bights determined in one Action.— A 
CJourt of equity will not permit litigation by peace- 
meai. The whole subject matter, and all the parties, 
should be before it, and' their respective claims deter- 
mined once and forever. — Wilson vs. Lassen, 5 Cal., 
p. 116. The rights of all should be adjusted, and noth- 
ing left open for future litigation, if it can be helped.— 
Ord vs. McKee, 5 Cal., p. 516. 

4. Order to bring in other parties.- "Whore it 
turns out upon the trial that a complete determination 
of the controversy cannot be had without the presence 
of other parties, the Court should, of its own motion, 
order them to be brought in before a final disposition of 
the case. — Settembre vs. Putnam, 30 Cal., p. 497. 

6. Court may bring in other parties without 
"WAITING FOR DEMURRER.— The omission of the defend- 
ant to demur for want of parties, does not affect the 
powet of the Court, under this section of the Code, 
from directing other parties to be brought in if it finds 
that it cannot completely determine the case in their 
absence. — Grain vs. Aldrich, 38 Cal., p. 514. But the 
right of demurrer was given to enable the Court to 
bring in necessary parties. — Warner vs. Uncle Sam, 9 
Cal., p. 697. 

6. What mat be Tried in Partition.— Any 
question affecting the right of the plaintiff to a par- 
tition, or the rights of each and all of the parties in the 
land, may be put in issue, tried, and determined in 
fiuch action. — DeUprey vs. DeUprey, 27 Cal., p. 830, 

7. Parties to Suit tor Partition. — A married 
woman whose husband is sued in partition is a neces- 
sary party if she claims a homestead right to or an 
interest in the property in dispute. — De Uprey vs. 
De Uprey, 27 Cal., p. 329. 

8. Disclaimer in Partition. — In an action of par- 
tition, a defendant cannot claim that the action be dis- 
missed as to him, on the ground that his answer 
disclaims any interest in the land, unless he has made 
the disclaimer in absolute and unconditional terms. — 
De Uprey vs. De Uprey, 27 Cal., p. 329. 

9. WiTE must be brought in in action to Porb- 
CLosx Mobtoaob on Homestead.- In an action to 



256 Code op Civil Procedure. 

foreclose a mortga^ against a husband where the 
defendant sets up the right of homestead, the Court 
should order the wife of defendant to be brought in as 
a party, as no decision upon the question of homestead 
can bo conclusive, either upon the husband or the wife, 
unless both are parties. — Marks vs. Marks, 9 Cal., 
p. 96. 

10. Even accommodation Grantees and ficti- 
tious Depositaries op title mat be brought in.— 
Although some of the parties may be mere accommo- 
dation grantees and fictitious depositaries of title, still 
they have a right to be heard at law in their own de- 
fense, before Courts of chancery can pronounce defin- 
itely on their claims. — Knowles vs. Inches, 12 Cal., 
p. 213. 

11. Who are unnecessary Parties and need. 
NOT BE BROUGHT IN.— See Peralta vs. Simon, 5 Cal., 
p. 313. 

12. If Persons are not made Parties they are 
UNAFFECTED BY JUDGMENT.— Persons not parties to a 
suit in ejectment and in possession before and at the 
time it is brought, or those claiminji^ under them, can- 
not be ousted by the writ of restitution issued upon a 
judgment therein in favor of the plaintiff. — See, also, 
for other particulars, Sampson vs. Ohleyer, 22 Cal., 
p. 200. 



TITLE IV. 

OP THE PLACE OF TKIAL OF CIVIL ACTIONS. 

Section 392. Certain actions to be tried where the subject or some 

part thereof is situated. 

393. Other actions, where the cause or some part thereof 

arose. 

394. Place of trial of actions against counties. 

395. Other actions, according to the residence of the parties. 

396. Action maybe tried in any county, unless the defendant 

demand a trial in the proper county. 

397. Place of trial may be changed in certain cases. 

398. "VVhcn Judge is dibqualified, cause to be transferred. 
r.s»9. Papers to be transmitted. Costs, etc. Jurisdiction, etc. 
400. Proceedings after judgment in certain cases transferred. 

392. (§ 18.) Actions for the following canses 
must be tried in the county in which the subject of 



«v 



Code op Civii. Procedubb. 257 

the action, or some part thereof, is situated, subject to CertEin 

' ^ ' > J actions to 

the power of the Court to change the place of trial, ^here th« 
as provided in this Code: ^£4 

1. For the recoveiy of real property, or of an es-.aitufaed!* 
tate or interest therein, or for the determination, in 
any form, of such right or interest, and for injuries to 
real property; 

2. For the partition of real property; 

3. For the foreclosure of a mortgage of real prop- ^ ' 
erty. 

Where the real property is situated partly in one 
county and partly in another, the plaintiiF may select 
either of the counties, and the coimty so selected is 
the proper county for the trial of such action. 

Note.— 1. Actions to Foreclose Mortgaoes — 
Must be tried in the county in which the subject of the 
action, or some part thereof, is situated. — Vallejo vs. 
Randall, 5 Cal., p. 462; but see Watts vs. White, 13 
Cal., p. 324, overruling this case in some particulars. 

2. Besidekce of Parties in actions concernino 
Real Property is immaterial. — It is unnecessary 
to mention the residence of the parties, or either of 
them, in actions concerning real property. The statute 
only provides for the trial of actions in certain coun- 
ties, and with reference to actions to recover real prop- 
erty, the situation of the premises, and not the resi- 
dence of the parties, determines the county. — Doll yb. 
Feller, 16 Cal., p. 433. 

3. Mining Claims are withik the provisions 
OF THIS Section.— See Hughes vs. Devlin, 23 Cal., 
p. 606, affirming Watts vs. White, 13 Cal., p. 324. 

4. Not applicable to Probate Proceedings. — 
This section does not apply to probate proceedings. — 
Estate of Chas. G. Scott, 15 Cal., p. 220. 

5. Court is not bound, on its own Motion, to 
Change the Venue— It is a matter op Right 
AS to the Parties, however.— For convenience, 
parties have a right to a trial of particular cases in par- 
ticular counties. There is a mere privilege, which may 
be waived by those entitled to it. It must be claimed 
at the proper time and in the proper way. It is not, 
by our statute, matter in abatement of the writ, but a 
mere privilege of trial of the suit in the given county. 

33 — Voii. I. 




/• 



258 









other 
aotiont. 
whore to* 
•soaeor 
Mme pert 
thereof 



Plaoeof 
trial of 

•CtiODB 

eoontief. 



• 



Code of Civil Procedure. 

The party desiring a change of venue should move the 
Court to change the place of trial, and then the Court, 
in the proper case, has no discretion to refuse the mo- 
tion. It seems to he a matter of peremptory right. 
We think the Court is not bound, of its own motion, 
to change the venue, and overrule so far the case of 
Yallejo vs. Randall, 5 Cal., p. 401, if that case is to be 
BO construed.— Watts vs. White, 13 Cal., p. 324. 

393. (§ 19.) Actions for the following causes must 
be tried in the county where the cause, or some part 
thereof arose, subject to the like power of the Court 
to change the place of trial: 

1. For the recovery of a penalty or forfeiture im- 
posed by statute; except, that when it is imposed for 
an offense committed on a lake, river, or other stream 
of water, situated in two or more counties, the action 
may be brought in any county bordering on such lake, 
river, or stream, and opposite to the place where the 
offense was committed; 

2. Against a public officer, or person especially 
appointed to execute his duties, for an act done by him 
in virtue of his office; or against a person who, by his 
command or in his aid, does anything touching the 
4utie8 of such officer. 

KoTS. — The second subdivision of this section, which 
provides that actions against a pubiic officer for cida 
done by him in virtue of his office, shall be tried in the 
county where the cause, or some part thereof, arose, 
applies only to affirmative acts of the officer^ by 
which, in the execution of process, or otherwise, he 
interferes with the property or rights of a third person, 
and not to mere omissions or neglect of official duty. — 
Elliott vs. Cronks, Adm., 13 Wend., p. 36; Hopkins 
vs. Heywood, id., p. 266; McMillan vs. Richards, 9 
Cal., p. 420. 

394. Actions against counties may be commenced 
and tried in any county in the Judicial Distinct in 
which such county is situated, unless such actions are 
between counties, in which case they may be com- 
menced and tried in any county not a party thereto. 

Note.— Stats. 1854, p. 194. 



Code op Civil Procedure. ^ 259 

395. (§ 20.) In all other cases the action must other 

^ ' actions, 

be tried in the county in which the defendants, or ^^^^^^ 
fiome of them, reside at the commencement of the Jh^'pStfeSf 
iiction; or, if none of the defendants reside in the 
State, or, if residing in this State, the county in which 
they reside is unknown to the plaintiff, the same may 
be tried in any county which the plaintiff may desig- 
nate in his complaint; and if the defendatit is about 
to depart from the State, such action may be tried in 
any county where either of the parties reside or service 
is had; subject, however, to the power of the Court to 
change the place of trial as provided in this Code. 

Note.— 1. Corporation has a rebidknck where 
^ its principal office or place of business is established, 
and is included within the provisions of this section. — 
Jenkins vs. Cal. Stage Co., 22 Cal., p. 538; see, also, 
Louisville B. R. Co. vs. Letson, 2 How. U. 8., p. 497; 
Ang. & Ames on Corp., pp. 6, 265, 404-407, 440. 

2. Action tried where Defendant rebidsb. — 
Defendant has a right to have the case tried in the 
county where he resides, except in the cases otherwise 
provided by this Code. — Loehr vs. Latham, 15 Cal., p. 
418. 

3. V^HEN A Public Officer i8 Defendant. — 
See Sec. 393, ante, and note. 

4. Not applicable to Probate Proceedings. — 
This section does not apply to probate proceedings. — 
See Estate of Charles G. Scott, 15 Cal., p. 220. 

6, Habeas Corpus not to run out of County.— 
The writ of habeas corpus should not issue to run out 
of the county, unless for good cause shown — as the 
absence, disability, or refusal to act of the local Judge — 
or other reason showing that the object and reason of 
the law requires its issuance. — Ex Parte Ellis, 11 Cal., 
p. 225. 

396. If the county in which the action is com- Action maar 

_ be tried in 

menced is not the proper county for the trial thereof, «»y countj. 

r jr */ 1 uQiesfl the 

the action may, notwithstanding, be tried therein, JemandlJ 
unless the defendant, at the time he appears and proper*^* 
answers or demurs, files an affidavit of merits, and ^^^' 



260 A Code of Civil Procedure. 



f 



cases. 



demands, in writing, that the trial be had in the proper 
county. 

Note.— See note to Sec. 397. 

iMml ^^'^' (§ ^■^•) ^^^ Court may, on motion, change 

fn co^tam ^ the place of trial in the following cases: 

1. When the county designated in the complaint is 
not the proper county; 

2. When there is reason to believe that an impar- 
tial trial cannot be had therein; 

8. When the convenience of witnesses and the ends 
of justice would be promoted by the change; 

4. When from any cause the Judge is disqualified 
from acting. 

Note.— 1. Motion, when made. — Where the con- 
veniences of witnesses is the ground oT the motion, it 
should not be made till after issue joined. — Hubbard 
vs. National Protection Insurance Co., 11 How., p. 149; 
Merrill vs. Grinnell, 10 id., p. 31; s. c, 12 N. Y. Seq. 
Obs., p. 286; Hinchman vs. Butler, 7 How., p. 462; 
Hartman vs. Spencer, 5 id., p. 135; see, also, Sup. Ct. 
Rules, pp. 59, 60. 

2. When Motion must be made.— In Reyes vs. 
Sandford» 5 Cal., p. 117, and in Toombs vs. Randall, 3 
Cal., p. 438, it was held that an objection to the venue 
must be made in the answer, and comes too late after 
an answer to the merits; it follows that such a motion, 
on grounds disclosed by the complaint, must be made 
before or at the time of filing demurrer. By filing a 
demurrer, and consenting to set the case for trial at a 
particular day, the defendant waives his right to move 
for a change of venue. — Pearkes vs. Freer, 9 Cal., p. 
643; see, also, Jones vs. Frort, 28 Cal., p. 246. See Soc. 
396, which modifies the rule of these decisions in some 
respects. 

3. Parties, and not Coitrt, to make Motion. — 
Motion should be made by the parties to the suit, and 
not by tlie Court, in the first instance. — Watts vs. 
White, 13 Cal., p. 824. 

4. Change of Venue discretionary with Judgs. 
The granting of a change of venue on the ground that 
a fair and impartial trial cannot be had, and other 
grounds, is discretionary with the Courts, and is sub- 
ject to revision only in cases of clear abuse. — Watson 
vs. Whitney, 23 Cal., p. 378; Sloan vs. Smith, 3 Cal.t 
p. 410; Pierson vs. McCahill, 22 Cal., p. 131; People 



Code of Civil Procedure. 261 

V?. Sexton, 24 Cal., p. 78; People vs. Fisher, 6 Cal.,p. 
155, commenting on People vs. Lee, 5 Cal., p. 354. 
And the granting of time to file counter affidavits, on a 
motion to change the place of trial, is a matter of dis- 
cretion in the lower Court. — Pierson vs. McCahill, 22 
Cal., p. 127. "" 

5. "When Change of Venue is not Discretion- 
ary. — The Court has no discretion as to change of 
venue when an action concerning real estate is brought 
in the wrong county. A motion to change the place of 
trial, and not a demurrer, is the proper proceeding, and 
the trial must be changed as a matter of right. — Watts 
vs. White, 13 Cal., p. 321. 

6. Right to Change Place of Trial mat be 
Waived. — For convenience, parties have a right to 
a trial of particular cases in particular counties. This 
is a mere privilege, which may be waived by those 
entitled to it. It must be claimed at the proper time, 
and in the proper way. It is not, by our statute, 
matter in abatement of the writ, but a mere privilege 
of trial of the suit in the given county. The part^' de- 
siring a change of venue should move the Court to 
change the place of trial, and then the Court, in the 
proper cane, has no discretion to refuse the motion. It 
seems to bo a matter of peremptory right. We think 
the Court is not bound, of its own motion, to change 
the venue, and overrule, so far, the case of Vallejo v^ 
Randall, 5 Cal., p. 461, if that case is. to be so con- 
strued.— Watts vs. White, 13 Cal., p. 324. 

7. Resisting Change of Venue— What Facts 
should govern court in granting change.— 
When a defendant applies for a change of the place 
of trial, on the ground that the action was not brought 
in the county where he resides, the plaintiff has a right 
to oppose the motion, by showing that the "con- 
venience of witnesses and the ends of justice would 
be promoted " by refusing the change, and such facts 
should govern and control the Court in determining 
the question whether the application for the change 
should be granted or not. — Loehr vs. Latham, 15 Cal., 
p. 418; Pierson vs. McCahill, 22 id., p. 127; Jenkins 
vs. California Stage Co., 22 Cal., p. 538; see, also, 
Fickens vs. Jones (not reported), Parker's Cal. Digest, 
Vol. 2, p. 82. 

8. Opposing the Motion. — The motion on the part 
of the defendant, to change the place of trial for the 
convenience of witnesses, may be resisted by the 
plaintiff by affidavit, showing that he has an equal or 
greater number of material witnesses than the defend- 



262 Code of Civil Procedure. 

ant residing in or near the county in which venue is 
laid.— Gilbert vs. Chapman, 1 How., p. 56; Spencer 
vs. Hurl hurt, 2 Cainei?, p. 374; Du Boys vs. Fronk, 3 
id., p. 95; Stoutenbergh vs. Legg, 2 Johns., p. 481; 
Anonymous, 7 Cow., p. 102; Onondaga Co. Bank vs. 
Shcpeid, 19 Wend., p. 10; ISherwood vs. Steele, 12 id., 
p. 294. 

9. When Action commenced in wrong Coukt it 
may yet be retained there if convenience of 
Witnesses require it. Practice in such case. — 
When defendant was not sued in the county of his resi- 
dence, and moved to change the place of trial to such 
county, plaintiff may make a counter motion to retain 
the cause on account of convenience of witnesses, and 
then defendant can reply to the allegations as to the 
convenience of witnesses; or plaintiff, instead of a coun- 
ter motion, may simply resist the motion of defendant, 
but reasonable time ehould be allowed defendant, if 
desired, to meet the matter set up in opposition to the 
original motion. — Lochr vs. Latham, 15 Cal., p. 418. 
Pierson vs. McCahill, 22 Cal., p. 127. But if the plain- 
tiff should neglect to present the facts as to conve- 
nience of witnesses, and the place of trial should once 
be changed to the county where defendant resides, it is 
doubtful whether the plaintiff can afterwards apply to 
the Court to which it has thus been removed, to have 
it sent back again. — Pierson vs. McCahill, 22 Cal., p. 
127. 

10. The Affidavit by Plaintiff to retain a 
Cause for Trial in a County not the residence 
OF the Defendant, upon the ground of convenience 
of witnesses, must contain the names of the witnesses, 
and the evidence as to the convenience should be as full 
and particular as that which is required upon appli- 
cation for this cause to transfer the trial to another 
county. — Loehr vs. Latham, 15 Cal., p. 418. 

11. Affidavit on motion for Change of Venuk 
MUST STATE WHAT.— The facts should be stated in the 
affidavit in such a manner as to enable the Court to 
draw its own inference whether or not an impartial 
trial could be had in the paHicular case, admitting that 
a prejudice did exist in the community against the 
defendant. — Sloan vs. Smith, 3 Cal., p. 412. 

12. Where the witnesses of Plaintiff resids 

IN THE place from WHICH DEFENDANT APPLIES TO 

MOVE THE TRIAL.— If the affidavit of a defendant for 
a change of venue, because a fair trial cannot be had, 
shows that all the witnesses of the plaintiff reside in 
the place from which the defendant seeks to remove the 



Code of Civil Procedubk. 268 

cause, it has an appearance as though he was endeavor- 
ing to escape from the efiects of their testimony hy ft 
removal of the cause, and should cause the application 
to be regarded with suspicion.— Sloan vs. Smith, 8 
Cal., p. 412. 

13. The Vlatstivv in an action may have the 
PLACE OF TRIAL CHANGED njpon a proper showing, 
equally with the defendant. There is nothing in the 
statute forbidding it. This section does not confine this 
motion to the defendant, but leaves it open for both 
parties. As a general rule, the action should be com- 
menced in the county where the defendants reside; but 
if, after the issues are made up and each party knows 
the facts necessary to be proved, the plaintiff should 
find that the convenience of his witnesses requires that 
the trial should be had in some other county, where the 
cause of action arose, and where his witnesses reside, 
he is certainly as much entitled to a change as the 
defendant would be under the same circumstances, and 
ho should not be denied that right because he has 
brought his action in the county where the defendants 
reside, or where the personal property in controversy 
may happen to be found. The present case shows the 
importance of thus establishing the rule. (See facts.) — 
Grewell vs. Walden, 28 CaU, p. 169. In New York, 
however, it was held that the plaintiff cannot directly 
move to change his venue, but may change it, by 
amending his complaint, of course, within the time 
allowed, or by motion for leave to amend, after the time 
to amend, of course, has expired. — Swartwoutvs. Payne, 
16 Johns., p. 148; Wakelee vs. Sprague, 7 Cow., p. 164, 

14. Where a strong prejudice exists, so that 

A PAIR AND IMPARTIAL TRIAL CANNOT BE HAD. — 

See Fickens vs. Jones (not reported), Parker's Gal. 
Digest, Vol. II, p. 82. 

15. The influence of the oppice op Sheripp is 
not sufficient cause to change the venue, on the ground 
that it will prevent a fair and impartial trial. — Baker 
vs. Sleight, Sheriff, etc., 2 Caines, p. 45. 

16. The existence op a party spirit in the . 
county where the venue is laid, against the party 
making the application, is not adequate ground for 
changing the place of trial. — Zobieskie vs. Bauder, 1 
Caines, p. 487. 

17. Where there are more Dependants than 
ONE, all must join IN THE MoTioN. — Sailly vs. 
Hutton, 6 Wend., p. 508; Welling vs. Sweet, 1 How. 
Pr., p. 156. And where all do not so join, good reason 
most be shown therefor. — Id. And this doctrine was 



264 Code of Civil Procedure. 

established in Fickens vs. Jones (not reported), Parker's 
Cal. Digest., Vol. 2, p. 82. 

18. When all Defendants need not join in 
Motion. — In an action against several defendants, 
where some of them have suflered default, the others 
may move to change the venue. — Chacevs. Benham, 
12 Wend., p. 200. So, if the action be in form against 
several defendants, and process be served upon a 
part only.— Brittain vs. Peabody, 4 Hill, p. 62, n. 

19. Incapacity of Judge to act.— Section 170 
of this Code provides that **a Judge shall not act aa 
such in any of the following cases: when he is related 
to either party by consanguinity or affinity within the 
third degree. * » * But this section shall not apply 
to the arrangement of the calendar or the regulation of 
the order of business," These are the only exceptions 
mentioned. This section (397) of the Code authorizes 
the Court to change the place of trial, " when, from 
any cause, the Judge is disqualified from acting in the 
action.*' These are mere formal matters, which deter- 
mine no question in dispute between the parties in any 
way affecting the merits of the controversy. But, 
beyond these acts, the Judge is totally disqualified from 
sitting in the case. Even if no objection is made, he 
has no right to act, and ought, of his own motion, to 
decline to sit as Judge. In Oakley vs. Aspinwall, 3 
Comstock, where a Judge sat in the case at the earnest 
solicitation of the party most interested in excluding 
him, and with the consent of both parties, it was held 
that the judgment which depended upon his concur- 
rence was vitiated. — People vs. Jos6 Eamon de la 
Guerra, 24 Cal., p. 77; see, also, De la Guerra vs. 
Burton, 23 Cal., p. 592. 

20. Incapacity of Judge— Exhibition of parti- 
san feeling by Judge, etc. — The exhibition by a 
Judge of partisan feeling, or the unnecessary expression 
of an opinion upon the justice or merits of a contro- 
versy, though exceedingly indecorous, improper, and 
reprehensible, as calculated to throw suspicion upon 
the judgment of the Court, and bring the administra- 
tion of justice into contempt, are not, under our statute, 
sufficient to authorize a change of venue, on the ground 
that the Judge is disqualilied from sitting. The law 
establishes a different rule for determining the quali- 
fication of Judges from that applied to jurors. — Mc- 
Cauley vs. Weller, 12 Cal., p. 523; see, also, People 
vs. Williams, 24 Cal., p. 31. 

21. Change of Venue in Probate Court.— 
When the Probate Judge is interested in an estate, or 



CJoDE OF Civil Procedure. 265 

in money coming to the heirs therefrom, he has no 
jurisdiction to act as Judge therein, and should grant a 
change of venue. It is no excuse for refusing a change 
of venue in such case to say that the Judge decided 
correctly upon the matter before him after refusing 
such change of venue. — Estate of White, 37 Cal., p. 
190. 

22. Fraudulent Debtor confesbinq several 
fraudulent judgments in different courts. — 
See Uhlfelder vs. Levy, 9 Cal., p. 607. 

23. The effect of an Appeal from Order re- 
fusing CHANGE OF Venue is to Stay all further pro- 
ceedings in the action until the determination of such 
appeal. — Pierson vs. McCahill, 23 Cal., p. 249. 

24. Transfer of Actions to United States 
Courts.— See Greely vs. Townsend, 25 Cal., p. 604; 
Calderwood vs. Hager, 20 Cal., p. 167; Caldorwood vs. 
Brady, 28 Cal., p. 07; McGrau vs. McGlynn, 32 Cal., 
p. 257. See the subject fully discussed in Notes 13, 14, 
15, 16 of Sec. 33, ante. The provisions of "An Act to 
provide for certifying and removing certain cases from 
the Courts of this State to the United States Circuit 
Courts, and to remove by writ of error certain cases 
from the Supreme Court of this State to the Supreme 
Court of the United States," passed April 9th, 1855 
(Stats. 1855, p. 80), have been omitted from the Code. 
It has been held that the State Legislature had no 
power to confer jurisdiction on the Federal Courts, nor 
to provide for the mode of exercising its jurisdiction. 
Say the Court, in Greeley vs. Townsend: The origin 
and history of the Act of the 9th of April, 1855 (Stats. 
1855, p. 80), arc well known. Five months prior to its 
passage the then Supreme Court of this State, in the 
case of Johnson vs. Goidon, 4 Cal., p. 368, had decided 
that the twenty-fifth section of the Federal Judiciary 
Act of 1789 was unconstitutional, and declared that no 
case could be taken from a State to a Federal Court by 
writ of error, or otherwise. The decision was made 
upon the authority of the Court of Appeals of Virginia, 
in the case of Martin vs. Hunter's Let^see, last test 
upon the bloody battlefields of the Republic. Startled 
by the judicial enunciation of this doctrine by the high- 
est Court of the State, the Legislature sought to pro- 
vide a remedy against its supposed evils by interposing 
a barrier to its fuilher judicial progress, apparently 
without pausing to consider whether a remedy was 
within the constitutional reach of State legislation. 



34— Vol. I. 



266 



Code op Civil Procedure. 



The motive was a good one; but, as all must admit, the 
power was wanting. Ii is not within the constitutional 
power of a State Legislature to confer jurisdiction upon 
Federal Courts, or prescribe the means or mode of its 
exercise. That subject belongs exclusively to the Fed- 
eral Government, and must be regulated solely by the 
Federal Constitution and the laws of Congress. While, 
therefore, I appreciate the motive of the Legislature in 
passing the Act in question, I am compelled to deny 
its power, and muet hold that, so far as the Act attempts 
to prescribe a rule for judicial conduct in cases like the 
present, it is wholly inoperative. — Grcely vs. Town- 
send, 25 Cal., p. 613; see, also. The Glen Falls Ins. Co. 
vs. Judge of the Jackson Ciicuit Court, 21 Mich., p. 
677. 



Papers to 
be trans- 
mittod. 



Costs, etc. 



Jurisdic- 
tion, etc. 



When 398. If an action or proceeding is commenced or 

Judge is . . 

disquaii- pending in a Court and the Jud2:e or Justice thereof 

fied, cause * o "7 o 

forroi'"^ is disqualified from acting as such, or if for any cause 
the Court orders the place of trial to be changed, it 
must be transferred for trial to a Court the parties may 
agree upon by stipulation in writing, or made in open 
Court and entered in the minutes; or, if they do not 
BO agree, then to the nearest Court where the like 
objection or cause for making the order does not exist, 
as follows: 

1. If in the District Court, to another District Court; 

2. If in a County Court, to some other County Court; 

3. If in the Probate Court, to some othet Probate 
Court; 

4. If in a Justice's Court, to another Justice's Court 
in the same county. 



399. When an order is made tmnsferring an action 
or proceeding for trial, the Clerk of the Court, or 
Justice of the Peace, must transmit the pleadings and 
papers therein to the Clerk or Justice of the Court to 
which it is tmnsferred. The costs and fees thereof 
and of filing the papers anew, must be paid by the 
party at whose instance the order was made. The 
Court to which an action or proceeding is transferred 



Code op Civil Procedure. 



267 



has and exercises over the same the like jurisdiction 
as if it had been originally commenced therein. 



.<: 



400. When an action or proceedinff aftectinff the 3?roooeff; 
title to or possession of real estate has been brought in ^j^ ^^^^ 
or transferred to any Court of a county other than the t^^f^' 
county iu which the real estate, or some portion of it, 
!8 situated, the Clerk of such Court must, after final 
judgment therein, certify, under his seal of office, and 
transmit to the corresponding Couil; of the county in 
which the real estate affected by the action is situ- 
ated, a copy of the judgment. The Clerk receiving 
such copy must file, docket, and record the judgment 
in the records of the Court, briefly designating it as a 

judgment transferred from Court (naming the 

proper Court). 











/ 






TITLE Y. 

OP THE MANNER OF COMMENCING CIVIL ACTIONS. 

SccnoK 405. Actions, how commenced. 

406. Complaint, how indorsed. When summons may be 

issued, and how waived. 

407. Summons, how issued, directed, and what to contain. 

408. Alias summons. 

409. Notice of tlie pendency of an action affecting the title 

to real property. 

410. Summons, how served and returned. 
4ft. Summons, how served. 

412. Publication when defendant is absent from the State, 

concealed, or a foreign corporation havin/; no agent, 
etc. 

413. Manner of publication and appointment of attorney. 

414. Proceedings where there are several defendants and 

part only are served. 

415. Proof of service, how made. 

416. When jurisdiction of action acquired. 

405. (§ 22.) Civil actions in the Courts of this Actions, 

^ ' how corn- 

State are commenced by filing a complaint, a«A  the mencod. 

i ag tting of tjummuna Ihoicon . , 



/ 



f 






J 



268 Code of Civil Procedure. 

Note. — 1. Actions, week Commenced.— Actions 
^ are commenced by filing complaint and'issuing sum- 

mons. — Dupuy Vij. Shear, 29 Cal., p. 239. And an action 
is not commence J until the is^suance of summons under 
the provisions of the fitatute limiting the time for the 
enforcement of mechanics' liens. — Green vs. The Jack- 
son Water Co., 10 Cal., p. 375. The provisions of Sec- 
tion 350, that actions are commenced within the mean- 
ing of the Statute of Limitations, upon the filing of a 
complaint without the issuance of summons, does not 
apply to time of commencing an action for the enforce^ 
ment of a mechanic's lien ; such an action is not com- 
menced until complaint is filed and summons issued. — 
See Flandreau vs. White, 18 Cal. p. 640. 

2. Action commenced within the meaning op 
Statute of Limitations. — The action is commenced 
within the meaning of the Title as to time of commenc- 
ing actions as soon as the complaint is filed. — See note 
to Sec. 350, ante (Statute Limitations), referring to 
Sharp vs. Maguire, 19 Cal., p. 577; Pimental vs. San 
Francisco, 21 Cal., p. .051 ; Allen vs. Marshall, 34 Cal., 
p. 165; Adams vs. Patterson, 35 Cal., p. 124. 

Complaint, 406. (§ 23.) The Clerk must indorse on the com- 

indorsed, plaiut the day, month, and year that it is tiled, and at 

any time within one year thereafter the plaintiff* may 

have summons issued. But at any time after the eom- 

Whensum- plaint is filed the defendant mav, in writinsc, or by 

mens may ^ "... 

Md'hot?* appearing and answering or demurring, waive the 
issuing of summons. 

NoTE.—l. Summons is waived by voluxtart 
APPEAKA>'CE OF DEFENDANT. — Although the action is 
said, by Sec. 405 of the Code, to be commenc<}d by the 
filin/r a complaint and issuing a summoni^ yet by Sec 
416 it is provided that a voluntary appearance shall be 
equivalent to personal service of the summons. Put- 
ting in an an^jwur is an appearance, and such an appear* 
ance must be held to be a waiver of the mere formality 
of issuing a summons, the service of which in such case 
becomes unnecessary. The only purpose of the sum- 
mons is to bring the defendant into Court. It is con- 
stantly said by Courts, when actions are commenced 
by the service of process, as by capias ad respmiden' 
dum, that a voluntary appearance waives all defects of 
process, even when objection is taken in the same action. 
Under our practice, the plaintiff, by filing his com- 
plaint, goes himself into Court; and although he may 



and how 
vraivod. 



Code of Civil Procedure. 269 

not choose to take out a summons, we think he cannot 
object to the defendant coming in and answering the 
complaint, any more than he could object to the defend- 
ant's voluntary appearance after the plaintiff had taken 
out a summons which he did not choose to serve. 
Quite as little can the defendant in a collateral action 
object that there was no action pending, after having 
voluntarily put in an answer to the complaint on file. — 
Hayes vs. Shattuck, 21 Cal., p. 54. 

2. Summons is waived by appeabance of De- 
fendant's Attorney.— -See Suydam vs. Pitcher, 4 
Cal., p. 280. 

3. When appearance by mistake does not 
AVOID ISSUANCE OF SUMMONS. — If an attorney author- 
ized to appear for a part only of several defendants 
inadvertently files an answer for all, and, discovering 
his mistake, obtains an order allowing him to withdraw 
his answer and file a new one, limited to the defendants 
for whom ho intended to answer, the Court acquires 
jurisdiction only of those defendants for whom the 
attorney finally appears. — Forbes vs. Hyde, 31 Cal., p. 
342. 

4. Time w^hen Summons may issue.— In 1860 this 
section was amended so as to read as follows: "And 
at any time within one year after the filing of the same, 
the plaintiff may have a summons issued." These are 
the only provisions prescribing the mode of commenc- 
ing suits and authorizing the issue of a summons. The 
summons authorized by this section to be issued, 
whether one or more, issues as a matter of course upon 
application to the Clerk. The party, upon filing his 
complaint and paying the costs, has a right to it, and no 
order by the Court or Judge is required. But the sec- 
tion was amended in 1860, and limited the time within 
which the summons provided for in that and the pre- 
ceding section could bo issued to one year after the 
filing of the complaint. This Is an amendment which 
merely affects the mode of proceeding, and all proceed- 
ings thereafter taken must be in accordance with that 
provision. A summons thereafter to be issued as a 

matter of absolute right, must issue by virtue of the * 

provisions of the section as amended, because there is 
no other provision authorizing the issue of any sum- 
mons. Conceding, then, that under the provisions of 
Sees. 405 and 406, a party may have more than one 
summons issued on the same complaint, they must all 
be issued within the time prescribed, for if he relies 
upon the provisions of that section to establish his 
right, he cannot have more than these provisions 



270 Code op Civil Procedure. 



authorize. A technical alias summons is not known 
to our law, and, in fact, under our system of practice 
there is no necessity for one. The summons specifies 
no return day, and when it has once been issued, it may 
be served and returned at any time, without reference 
to the time of the commencement of the next term of 
Court. It is served by delivering a copy to the defend- 
ant. If more than one summons is authorized by the 
Practice Act, the second has no necessary connection 
with or dependence upon the first. It is based upon 
the complaint alone. The capias ad refspondctidun^ 
under the common law system, was returnable at the 
next succeeding term of the Court, and a return of the 
writ was a necessary prerequisite to the issuing of an 
alias. It was also necessary, on return of the capias^ 
that a continuance roll should be made up, and, unless 
there was a continuance, there was nothing to connect 
an aliaSf or pluries, with the capias upon which it 
depended, and the suit failed. Unless the continuity of 
the proceedings was kept up by a continuance roll from 
the issuing of the capias to the issuing of the alias or 
pluries upon which the defendant was arrests, the 
issue of the capias within the time specified in the 
Statute of Limitations would not save the action, where 
the arrest was made on an alias issued after the statute 
had run upon the demand in suit. A party might, 
doubtless, issue as many writs of capias as he pleased 
on the same demand, without reference to the return of 
the prior writ; but in such case the suing out of such 
writ would be the institution of a new suit, and not he 
a process in the same suit. But these principles have 
no relevancy to our system. — Dupuy vs. Shear, 29 CaL, 
p. 241. 

6. Service o¥ Summons after Notice of Mo- 
tion TO Dismiss for Want of Prosecution. — If 
notice is given of a motion to dismiss an action for want 
of prosecution, before summons is served, and the 
plaintiff then serves the summons, and at the end of 
ten days takes a default, but judgment is not entered 
up, the entry of the default does not preclude the Court 
from dismissing the action. The dismissal takes efifect 
by relation back to the time of service of the motion. — 
Grigsby vs. Napa County, 36 Cal., p. 585. 

6. Dismissing Action for want of Prosecu- 
tion. — This Court will not reverse a judgment dismis- 
sing an action for want of prosecution, unless there has 
been an abuse of discretion in the Coart below in giving 
the judgment; and it devolves on the appellant to show 
such abuse of discretion, and allowing an action to rest 



Code op Civil Procedure. 271 

without service of summons, for two years and eight 
months after the summons is issued, is such a want of 
diligence as to justify the Court in dismissing the 
action.— Grigsby vs. Napa County, 36 Cal., p. 585. 

7. When the Court must Order Summons to 
Issue. — If the Court had any authority to direct a 
second summons to issue, after the expiration of a year 
from the filing of the complaint, it must be because, 
by filing the complaint and issuing a summons thereon, 
a suit had been commenced within the meaning of the 
provisions of the Practice Act, and there was thence- 
forth a suit pending and within the control of the Court 
which the Court, by virtue of its general powers over 
the subject matter, was authorized to dispose of; and, 
as incident to this power, it was authorized to direct 
process to issue for the purpose of acquiring jurisdiction 
of the person. We can perceive no other ground upon 
which to base the power of the Court to make the 
order. Conceding this authority to exist, the exercise 
of the power rests in the sound legal discretion of the 
Court. The order for the issue of the summons in the 
first instance (see facts) was made upon an ex parte 
application, and, doubtless, without much considera- 
tion. Afterwards, the question was more fully consid- 
ered upon the motion to vacate the order and set aside 
the summons, when both parties were heard upon the 
merits. The Court then came to the conclusion that 
the order had been made and the summons issued im- 
providently, and the summons was thereupon set aside. 
The Court, upon a full hearing, exercised its judicial 
discretion, and we are not prepared to say that it was 
not soundly exercised. — Dupuy vs. Shear, 29 Cal., p. 
242. 

8. Issuance of Summons within one tear— 
What CONSTITUTES Issuance of Summons.— Sec. 410 
provides that " at any time within one year after the • 
filing of the same (the complaint) the plaintiff may 
have summons issued;*' and Sec. 28 provides that **a 
copy of the complaint shall be served with the sum- 
mons." Under this last provision, the service of a copy 
of the complaint is held to be essential to a valid ser- 
vice. — McMillan et ex vs. Reynolds, 11 Cal., p. 873. 
What is intended by the terms ** issuing a summons 
thereon," and "may have a summons issued?" Does 
the statute simply mean the delivery of the technical 
summons alone, duly signed and sealed, or does it mean 
that the summons shall be issued with the accompany- 
ing copy of the complaint, which is absolutely neces- 
saiy to enable the plalntifiT to procure a valid service? 



272 Code of Civil Troceduke. 

It is evident to our minds that the latter is the true 
construction. To adhere strictly to the letter in this 
instatice, and hold the delivery of a summons sufficient, 
would truly be to f^tick in the bark. The issuing of the 
summons intended, is issuing it accompanied with 
everything necessary to enable the party, when he 
receives it, to make it available for the purpose of effect- 
ing a valid service. The issuing of a summons with- 
out a copy of the complaint would be a nugatory act, 
whereas something practical must have been int-ended. 
The summons cannot be t^n'id to be insued, within the 
meaning of the Act, till it is in a condition to serve. 
Before the amendment of 1860 the summons might be 
issued at any time after filing the complaint; but by 
the amendment of that year it could only be issued 
within a year. It was doubtless found that to i)ermit 
the summons to be issued at any time, without limita- 
tion, enabled plaintiffs to indefinitely extend the Statute 
of Limitations. At all events, the amendment was 
adopted, and it was evidently the intention to require 
parties to proceed with their litigation within a reason- 
able time — to place themselves, at least, in a condition 
to effect a service of process. And we think the sum- 
mons not issued, within the meaning of the Act, till all 
the papers essential to enable the plaintiff to make a 
valid personal appearance on the defendants, duly 
attested, are placed at his disposal. — Reynolds vs. 
Page, 35 Cal., p. 300; see, also, opinion of Khoades, J., 
dissenting. 
9. Generallt. — See Note No. 2, to Sec. 405. 

f?ummons, 407. (§§ 23, 24, 25, 26.) The summons must be 

how iBSttod, \ / / / 

directed, directed to the defendant, signed fey the Clerk, and 

and what to jo./ ' 

contain. issued Under the seal of the Court, and must contain: 

1. The names of the partifes to the action, the Court 
in which it is brought, and the county in which the 
complaint is filed; 

2. The cause and general nature of the action; 

8. A direction that the defendant appear and answer 
the complaint within ten days, if the summons is 
served within the county in which the action is 
brought; within twenty days, if served out of the 
county but in the district in which the action is 
brought, and within forty days if served elsewhere; 

4. Li an action arising on contract, for the recoverjr 



J 



■^ 



Code of Civil Procedure. 273 

of money or damages only, a notice that unless the Same, 
defendant so appears and answers the plaintiff" will 
take judgment for the sum demanded in the com- 
plaint (stating it) ; 

5. In other actions, a notice that unless defendant so 
appears and answers the plaintiff* will apply to the 
Court for the relief demanded in the complaint. 

The name of the plaintitf"s attorney must be in- 
dorsed on the summons. 

Note. — The preceding section embodies in a con- 
densed form the substance of Sees. 24, 25, and 26, and 
the last clause of Sec. 23, of the Practice Act. 

1. FoKM OF Summons— pRocEEDiNa by Defend- 
ant ON DEFECTIVE SUMMONS. — *' The summons is 
the process by which parties defendant are brought 
into Court, so as to give the Court jurisdiction of 
their persons. Its form is prescribed by law; and 
whatever the form may bo it must be observed, at least 
substantially. It may be that a summons under our 
system is required to state more than is necessary for 
the information of the defendant; that a copy of the 
complaint servea by the Sheriff or the attorney would 
have been all that is needful. If that be so it is a mat- 
ter for the Legislature and not for the Courts. We 
entertain no doubt that a summons must contain all 
that is required by the statute, whether deemed needful 
or not, and, among other things, must state the parties 
to the action. It may be that when the defendant 
moved to quash the summons for insufficiency, the 
Court might have entertained a counter motion to have 
it amended by inserting the omitted names of the 
defendants, and, on its being so amended, might have 
diinied the original motion. In Polock vs. Hunt, 2 
Cal., p. 193, it was held that the Court had power to 
amend the summons so as to make it conform to the 
law, when it operated no hardship or surprise to the 
defendants. No such counter motion, however, was 
made in this case, and we cannot pass upon that ques- 
tion," — ^Lyman vs. Milton, Oct. Term, 1872, Sup. Ct. 
Cal. 

Motion to Dismiss dkfective Summons.— "A de- 
fendant has a right to appear for the purpose of moving 
to dismiss a defective summons, and it is error in the 
Court to refuse him that privilege. Nor does the fact 

35 — Vol. I. 



874 CoDB OF Civil Procedure. 

that he afterwards appears and answers waive his TigHt 
or cure the error." — Deidesheimer vs. Brown, 8 Cal., 
p. 336; Gray vs. Hawes, id., p. 569; Lyman vs. Milton^ 
Oct. Term, 1872. 

2. Defective Summons— Summokb must appbisb 
Defendant of what. — In an action for fraudulently 
converting money of plaintiff it was held that the sum- 
mons was fatally defective in this, that it did not apprise 
the defendant that, upon his failure to appear and 
answer, the plaintiff would take judgment against him 
for fraudulently converting the property of the plaintiff. 
The notice in the summons was that ^* if you fail to 
appear and answer the said complaint, as above re- 
quired, the said plaintiff will take judgment against 
you for the said sum of eleven thousand one hundred 
and fifty-six dollars and sixty- two cents, intercut and 
eosts,*' etc. Under such a notice the plaintiff could 
only take an ordinary judgment upon default for the 
money demanded. A defective summons will no( sus- 
tain a judgment by default.— 2 Cal. R., p. 241; Porter 
vs. Hermann, 8 Cal., p. 625. 

8. Defective Summons will not support Judg- 
ment BT DEFAULT. — ^If the summons be extremely 
defective in not conforming to the provisions of the 
Code, it is insufficient to support a judgment by default. 
People vs. Woodlief, 2 Cal., p. 242. 

4. Amendment of Summons.— Court has power to 
amend summons so as to make it conform to law if it 
operates no hardship or surprise to defendants. — Polock 
vs. Hunt, 2 Cal., p. 194; Lyman vs. Milton, Oct. Term, 
1872, Sup. Ct. Cal. 

5. Object of Summons— Appearance sufficient. 
The only object of sc summons is to bring a party into 
Court, and if that object be obtained by the appear- 
ance and pleading of a party, there can be no injury to 
him. — Smith vs. Curtis, 7 Cal., p. 587. 

6. Time in which Summons shall require De- 
fendant TO Answer.— Subd. 8 of this section allows 
a party ten days after the service of the summons to 
file his answer, if served in the county; twenty days if 
out of the county but .within the judicial district; and 
forty days in all other cases. A non-resident of the 
State would, therefore, come under the last clause, and 
be entitled to forty days after the service of the sum- 
mons. — Grewell vs. Henderson, 5 Cal., p. 465. 

Time to Answer when Summons is served bt 
PUBLICATION, — And if summons is served by publica- 
tion on defendant, non-resident of the State, he has 



CoDB OF Civil Procbdurb. 



276 



forty days after the lapse of the period of publication. — 
GreweU vs. Henderson, 5 Cal., p. 465. 

7. Judicial notice of local divisions ov Statb, 
Counties, etc., under Subd. 3.— -Courts take judi- 
cial notice of the territorial extent of the jurisdiction 
and sovereignty exercised de facto by their own gov- 
ernment, and of the local divisions of the country, as 
into States, counties, cities, towns, and the Uke, so 
fkr as political government is concerned. — People vs. 
Smith, 1 Cal., p. 9; see, also, Sec. 1375, post. 

8. Answer Filed after time for Answering 
HAS expired. — It is perhaps not t^trictly regular to file 
the answer after the time for answering had expired, 
without leave of the Court. But if the default of the 
defendant had not been entered we think the filing was 
not a nullity. It was at most a mere irregularity, for 
which the answer might have been stricken out, but on 
account of which the plaintiff was not entitled to have it 

• set aside, unless the Court, in the exercise of its discre- 

tion, deemed such to be the proper course. The whole 
proceedings were in fieri, and our opinion is, that the 
Court had absolute power, either to retain the answer 
or to permit another to be filed, or to pursue whatever 
course in that respect the justice of the case required. 
A defendant cannot, ibr these purposes, be considered 
in default until his default has been actually entered in 
accordance with the statute. — Bowers vs. Dickerson, 18 
Cal., p. 421. 

408. If the summons is returned without being Aiia« 
served on any or all of the defendants, the Clerk, upon 
the demand of the plaintiff, may issue an alias sum- 
mons in the same form as the original. 

409, (§ 27.) In an action affeoting real property, Notice of 

too 

the plaintiff, at the time of filing the complaint, and pendency of 
the defendant, at the time of filing his answer, when th!?tiu?to 
affirmative relief is claimed in such answer, or at any proportj. 
time afterwards, may file with the Recorder of the 
coanty in which the property is situated, a notice of 
the pendency of the action, containing the names of 
the parties to, and the object of^ the action or defense, 
and a description of the property in that county affect- 
ed thereby. From the time of filing, only, is the 
pendency of the action constructive notice to a pur- 














> 



276 Code of Civil Procedure. 

chaser or incumbrancer of the property affected 
thereby. 

Note. — 1. Cokptruction or Section — Applicable 
TO SUITS IN Ejectment. — Section 27 of the Practice 
Act reads as follows: ** In an action affecting the title 
to real property, the plaintiff, at the time of filing the 
complaint, and the defendant, at the time of filing his 
answer, when aflSrmative relief is claimed in such 
answer, or at any time afterwards, may file with tlie 
Kecoider of the county in which the property is situ- 
ated, a notice of the pendency of the action, containing 
the names of the parties to, and the object of, the 
the action or defense, and a dcFcription of the property 
in that county affected thereby; and the defendant may 
also, in such notice, state the nature and extent of the 
relief claimed in the answer. From the time of filing, 
only, is the pendency of the action constructive notice 

, to a purchaser or incumbrancer of the property affected 

thereby." This was held, however, to have no relation 
to proceedings in ejectment, but to proceedings in 
chancery, the purpose of which is to affect titles by 

'* turning equitable estates into legal ones or to dispose 

of legal estates by vendition for the purpose of satisfy- 
ing liens upon them, etc. — Watson vs. Dowling, 26 
Ca)., p. 125. So, also, it was held that the section did 
not apply to actions affecting the possession of real 
property, but only to actions affecting the'title — it was 
held that the section only applied " to actions which 
operate directly upon the title, and by the result of 
which some change as to the title is wrought; examples 
of which are found in actions for the condemnation of 
real estate and the specific performance of contracts 
relating thereto, for the foreclosure of mortgages, or 
other liens and the like." — Long vs. Neville, 29 Cal., 
p. 135. In order to remedy this defect, if it could be so 
called, and make the section applicable to ejectment 
suits, the Legislature of 1872 passed the following Act: 

Stats. 1871-2, p. 189: 

An Act to amend an Act entitled an Act to regulate 
proceedings in civil cases in Courts of justice of 
this Slate, passed April iwetity -ninth, eighteen kwi" 
dred and Jifty-mie. 

[Approved March 2, 1872.] 

[Enacting clause.] 

Section 1. Section twenty-seven of said Act is 
hereby amended so as to read to follows: 
Section 27. In an action affecting the title to real 



> r 



Code op Civil Procedure. 277 

property, or the right to the possession of real property, 
the plaintiff^ at the time of filing his complaint, and 
the defendant, at the time of filing his answer, when 
aflSrmative ivlief is claimed in such answer, or at any 
time afterwards, may record with the County Recorder 
of the county in which the property is situated, a notice 
of the pendencj' of the action, containing the names of 
the parties to and the ohject of the action, and a 
description of the property in that county affected 
therehy; and the defendant may also, in such notice, 
state the nature and extent of the relief claimed in the 
answer. From the time of filing for record only shall 
the pendency' of the action be constructive notice to a 
purchaser or incumbrancer of the property affected 
thereby. 

But as this Act is amendatory of an Act which is 
repealed by the Code, it does not affect Sec. 409, and 
is repealed when tlie Code takes effect, that is on thd 
first day of January, 1873. — See Sec. 18, ante. Sec. 
409, however, accomplishes the same object by omit- 
ting the words "title to "between the words "affect- 
ing'* and "real property." So that now the cases of 
AVatson vs. Dowling, 26 Cal., p. 125, and Long vs. 
Neville, 29 Cal., p. 135, so far as they hold that this 
section is not applicable to ejectment suits, etc., cease 
to be of any effect. It is clear that an action which 
affects the right to possession of real property certainly 
must be held as ** affecting real property," and conse- 
quently this section is applicable to suits in ejectment 
and actions affecting the right to possessions of real 
property in like manner with actions affecting the title 
to real property. 

2. Application of Skction. — In Richardson vs. 
"White, 18 Cal., p. 106, this section was held to apply 
to those purchasing or taking incumbrances upon the 
property after filing of notice of pendency of the action 
(Ault vs. Gassaway, 18 Cal., p. 205); but this section 
only applies to actions pending, and not to judgments 
and decrees rendered! which, at common law, it would 
seem, were notice to all persons. — Sorrell vs. Carpenter, 

2 P. Wm., p. 482; Searle vs. Lane, 2 Vernon, pp. 37, ^ 

88; Monell vs. Lawrence, 12 Johns., p^ 534; Watting- 
ton vs. Howley, 1 Dessaussure, p. 170; Grattan vs. 
Wiggins, 23 Cal., p. 38. 

3. Section not applicable to Prockedinob 
BEFORE Supervisors. — The common law doctrine of 
lis pendens does not apply to the proceedings before a 
Board of Supervisors.—Curran vs. Shattuck, 24 Cal., 
p. 434. 



27B Code of Civil Proceduke. 



4. PUHCHABKR IN GOOD FAITH, WITH NO NOTICX 

OF L18 PENDENS. — "Where proceediDgs for the con- 
demnation of property were pending, a purcliaser in 
good faith, where no notice of pendency of action is 
filed, is unaffected by the proceedings. — Bensley vs. 
Mt. Lake Water Co., 13 Cal., p. 307. 

5. Notice or pendency of Suit must be Filed 
TO HAVE effect TO Charoe PURCHASER.— Under 
our statute, the mere pendency of a suit does net charge 
the purchaser of the subject of it as a purchaser pen- 
dente lite at common law. A notice of lis pendens, to 
have that effect, must be filed or appear of record. — 
Head vs. Fordyce, 17 Cal., p. 151. The general rule 
is, that one not a party to a suit is not affected by the 
judgment. The exception at common law is, that a 
pendente lite purchaser, though not a party, was so 
affected; the qualification of the doctrine made by our 
statute is, that such ; purchaser is not affected unless 
notice of such lis pendens be filed with the Recorder. 
It is not necessary to consider whether actual notice 
would not supply the place of this constructive notice, 
for the bill makes no such case. The common law 
doctrine of lis pendens rests upon the fiction of notice 
to all persons of the pendenc}' of suits, and to remedy 
the evils which might grow out of the transfer of appa- 
rent legal titles or rights of action to persons ignorant 
of litigation respecting them, this provision was in- 
serted in our statute. We con^^ider our statute not as 
giving new rights to the plaintiff", but as a limitation 
upon the rights which he had before. If no lis pendens 
be filed, the party acquiring an interest or claim pen- 
dente lite, stands wholly unaflected by the suit. If he 
has any rights which, but for the suit, he could set up, 
he may still maintain those riglits. But he would not 
be foreclosed by a judgment against the party to the 
suit from wliom he obtained his assignment. The ob- 
ject of the statute evidently was to add to the common 
law rule a single term, to wit: to require for construc- 
tive notice not only a suit, but filing a notice of it; so 
that this rule is, as if it read: " The commencement of 
a suit and^the filing of notice of it are constructive no- 
tice to all the world of the action, and purchasers or 
assignees, afterwards becoming such, are mere volun- 
teers, and bound by the judgment. — Richardson vs. 
White, 18 Cal., p. 106. The rule of law was settled 
that " every man is presumed to be attentive to what 
passes in the Courts of justice of the State or sover- 
eignty where he resides. And, therefore, a purchase 
made of property actually in litigation, pendente lite^ 



Code op Civil Procedure. -279 

for a valuable consideration, and without any express 
or implied notice, in point of fact, affects the purchaser 
in the same manner as if he had such notice; and he 
will accordingly be bound by the judgment or decree 
in the suit." — 1 Story's Eq., Sec. 405. This rule some- 
times operated as a hardship upon parties who had no 
actual notice, and the Code (Sec. 409) provides that the 
plaintiff or defendant may file a notice of the pendency 
of the action with the Recorder of the county in which 
the property is situated, and the law provides that, 
"from the time of filing only shall the pendency of the 
action be constructive notice to a purchaser or incum- 
brancer of the property affected thereby.'' In no other 
respect are the rules of law relating to this subject 
changed by the statute. A purchaser or incumbrancer 
of property, instead of being required to examine all 
the suits pending in the several Courts, to ascertain 
whether any of them relate to or affect the real estate 
he is negotiating about, has now only to examine the 
notices of Ha pendens filed in the Recorder's office of 
the county where the real estate is situated, and he is 
only bound by constructive notice of what may there 
appear. The rules of law relating to actual notice of a 
pending action, and the effect of such actual notice 
upon parties dealing with or taking possession of prop- 
erty in litigation, are in no sense changed by this section 
of the Practice Act, but remain the same as before this 
law was passed. — Richardson vs. "White, 18 Cal., p. 
102; Bcnsley vs. Mountain Lake Water Co., 13 id., p. 
306; Head vs. Fordyce, 17 id., p. 149; Ault vs. Gassa- 
way, 18 id., p. 205; Samson vs. Ohleyer, 22 Cal., p. 210. 

6. Purchaser during pendency of Action, but 
WHERE NO Notice is Filed. — If a party purchases 
land during the pendency of an action to foreclose a 
mortgage on it, but where no notice of lis pendens has 
been filed, and he purchases without notice, after entiy of 
default but before final judgment, he is not bound 
by the judgment, even if final judgment gives con- 
structive notice to parties dealing with the subject mat- 
ter. — Abadie vs. Lobero, 36 Cal., p. 400. 

7. Effect of a Notice of Pendency of Action 
UPON subsequent Purchasers. — It was held that 
the effect of the lis pendens was to make a subsequent 
purchaser a mere volunteer, affected by the judgment 
rendered, or which might be rendered, in the suit, of 
the pendency of which notice was given. — Gregory vs. 
Haynes, 13 Cal., p. 594; see, also, Gregory vs. Haynes, 
21 Cal., p. 446; and these cases are affirmed in Haynes 
vs. Calderwood, 23 Cal., p. 410; see, also, Curtis vs. 



280 Code of Civil Procedube. 

Sutter, 15 Cal., p. 263. Where an action to set aside a 
fraudulent deed was commenced, and a notice of the 
pendency of the action was iiled, it was held that a 
party who bought of the defendant subsequent to the 
filing of the notice of lis pendens was bound by the 
decree. — Hurlbutt vs. Butenop, 27 Cal., p. 56. And in 
an action to foreclose a mortgnge a purchaser subBe- 
quont to notice of ^2.8 petidetis filed, was held to stand 
in tlie Fame position as his grantor as to the issuance of 
a writ of assistance in favor of a purchaser under the 
decree of foreclosure. — Montgomery vs. Byers, 21 Cal., 
p. 107. A notice of lis pendens having been duly filed, 
a party purchasing from the defendant while the action 
was pending, and after the notice was filed, is bound 
and e8toi)ped by the judgment therein. — Calderwood 
vs. Tevis, 23 Cal., p. 837. 

8. SuiiSKQUKNT Purchaser, with kotick ov lib 
PENDENS. — A purchaser of land, with notice of the 
per.dency of an action for the foreclosure of a mortgage 
on it, or a purchaser aller final judgment, in either 
case is bound by the judgment. — Abadie vs. Lobero, 
36 Cal., p. 399. 

9. Purchaser, pendente lite, estopped bt thk 
Decree. — If an action is brought against a corporation 
to foreclose a mortgage, purporting to have been ex- 
ecuted by it, and a lis pendqis is filed, and a decree is 
rendered enforcing the moitgage, a party who buys 
the mortgaged property, pendente lite, at Sheriff's 
sale, made on a judgment which does not enforce a 
lien older than the lis pendens, is estopped from saying 
that the mortgage was not the act of the corporation. 
A party who has no interest in mortgaged property at 
the time an action is brought to foreclose the mortgage, 
and who buys, pendente lite, ?ind after a lis pendens 
has been filed, is not a nec(?sisary party to the fore- 
closure. — Horn VF. Jones, 28 Cal., p. 194. 

10. Actual Notice of pendency of Action of 
same effect as Filing op Notice of lis pendens. 
If notice of lis pendens is filed, there can be no doubt 
that every party acquiring an interest in the premises 
subsequent to the filing would have been bound by the 
judgment in the foreclosure suit without being made a 
party. — Hurlbutt vs. Butenop, 27 Cal., p. 56; Horn vs. 
Jones, 28 Cal., p. 194; Haynes vs. Calderwood, 23 
Cal., p. 409. It does not appear in this case that a 
notice of lis pendens was in fact filed. But the object 
of filing such a notice Is to afiTord constructive notice of 
the pendency of the action. This is the only effect indi- 
cated by the Code (Sec. 409). The object being to afford 



Ck)DB OP Civil Procedure. 281 

notice, actual notice must certainly be as effectual as 
constructive notice under the statute. We can per- 
ceive no good reason why a partj' taking an interest in 
a tract of land pending a proceeding to foreclose a 
mortgage upon it, with actual notice of the action, 
should not be bound by the judgment, although no 
notice of lis petidens had been filed. We think he is, 
and so hold the law to be. — Sharp vs. Lumley, 34 Cal., 
p. 615; see, also, Sampson vs. Ohleyer, 22 Cal., p. 210. 

11. What constitutes actual Notice of pen- 
dency ov Action. — In this case a foreclosure suit was 
commenced before the petition in insolvency was filed. 
In the schedule attached to the petition in insolvency 
the debt and the mortgage upon -the land in contro- 
versy to secuie it were specifically described, and 
this statement appended: "Suit for foreclosure com- 
menced." And the order of the Judge expressly pro- 
vided " that all actions now pending may be prosecuted 
to judgment.*' This order allowed the action for fore- 
closure to proceed; and the assignee in insolvency, and 
all parties purchasing from him, had notice of the 
pendency of the foreclosure suit, and they are bound 
by the judgment. — Sharp vs. Lumley, 34 Cal., p. 615. 

Sufficient notice to put one on inquiry as to 
pendency of Action.— See Grattan vs. Wiggins, 23 
Cal., p. 38. 

12. When an Action is considered pendino.— 
An HI. oil is still pending after a default until final 
judgment has been entered. — Abadie vs. Lobero, 36 
Cal., p. 400. 

410. (§ 28.) The summons may be served by the Sammons. 
Sheriff of the county where tbe defendant is found, or and 
by any otlier person not a party to the action. A copy 
of the complaint must be served with the summons, 
unless there is more than one defendant residing in 
the same county, in which case a copy of the complaint 
must be served upon one of them. When the sum- \ 

mons is served by the Sheriff it must be returned, 
with his certificate of its service, and of the service 
of a copy of the complaint, to the office of the Clerk ^ 

fix)m which it issued. pWhen it is served by any other J 

person it must be returned to the same place, with an A 

36— Vol. I, 




^ 



p 



282 Code of Civil Procedure. 

fi^ffidavit of such person of its service, and of the ser- 
vice of a copy of the complaint. 

Note. — 1. Service of Summons by person other 
THAN THE SHERIFF. — Formerly Sec. 28 of the Practice 
Act provided that " sen'ice of summons might be made 
by," among other persons, " any white male citizen over 
twenty-one j'ears of age, who is competent to be a wit- 
ness on the trial of the action," etc., and " a copy of the 
complaint, certijied by Uie Clerks i^hould be served with 
the summons." Under these provisions affidavits of 
service of summons were held to be defective, which 
did not state that the person serving it was a whiiemale 
citizen^ and over tu^enty-one years of age, and compe- 
tent to testify; and that a certified copy of the com- 
plaint accompanied the summons. — See McMillan vs. 
lleynolds, 11 Cal., p. 378; Ilahn vs. Kelly, 34 Cal., p. 
404; Reynolds vs. Page, 35 Cal., p. 299; Curtis vs. Her- 
rick, 14 Cal., p. 119. It will be observed, however, that 
Sec. 410 of the Code omits the requirements that the 
person making service shall be a ** white male citizen 
of the age of twenty -one years^** and also that the copy 
of the complaint shall be certijied by the Clerk^ etc. 
The only requirement is, that he shall not be a party to 
the action. Of course, as a matter of proof of service, 
he must be comptjtent to make an affidavit. — See, also, 
Dimick vs. Campbell, 31 Cal., p. 239; Hahn vs. Kelly, 
34 Cal., p. 391; aff'd in Quivey vs. Porter, 37 Cal., p. 
468; see, also, Reynolds vs. Page, 35 Cal., p. 299. 

2. Service by Deputy, and his return thereon. 
The return of the service of summons issued in an ac- 
tion was signed Elijah T. Cole, D. S., and it was held 
that such a return was insufficient to prove service, and 
that the act and return of a deputy is a nullity, unless 
done in the na-ine and by the authority of the Sheriff.— 

^ Rowley vs. Howard, 23 Cal., p. 403; aff'g Joyce vs. 

Joyce, 5 Cal., p. 449; and to the same effect see Lewes 
f vs. Thompson, 3 Cal., p. 266. 

3. Return by Sheriff— Amendments thereto- 
Correction OF mistakes.— The Sheriff has no right 
after making a return to amend it so as to affect righta 
which have already vested. — Ncwhall vs. Provost, 6 
Cal., p. 87. But a mistake in the date may bo cor- 
rected at any time.— Ritter vs. Scannel, 11 Cal., p. 249. 

4. Sbrvice where were are more tuan oms 
Defendant residing in same County.— Where 
the affidavit states the county in which service was 
made and one of defendants makes default, it will be 
presumed that he was a resident of the county where 




^ 



Code op Civil Procedurb. 288 

service was made. A copy of the complaint Deed be 
served on hut one of several defendants residing in same 
county. — Caldenvood vs. Brooks, 28 Cal., p. 153. 

5. Proof or service oy Summons and Complaint. 
See Sec. 415, post, and notes. 

411. (§ 29.) The summons must be served by Summons, 

J . ** kow served 

delivering a copy thereof, as follows: 

1. If the suit is against a corporation: to the Presi- 
dent, or other head of the corporation. Secretary, 
Cashier, or managing agent thereof; 

2. If the suit is against a foreign corporation, or a 
non-resident joint stock company or association doing 
business and having a managing or business agent, 
Cashier, or Secretary within this State: to such agent. 
Cashier, or Secretary; 

3. If against a minor under the age of fourteen 
years: to such minor personally, and also to his father, ^ 
mother, or guardian; or if there be none within the 

State, then to any person having the care or control of ^ 

such minor, or with whom he resides, or in whose 
service he is employed; 

4. If against a person judicially declared to be of 
unsound mind or incapable of conducting his own 
affaire, and for whom a guardian has been appointed: 
to such guardian; 

5. If against a county, city, or town: to the Presi- 
dent of the Board of Supervisors, President of the 
Council or Trustees, or other head of the legislative 
department thereof; 

6. In all other cases: to the defendant personally. 

NoTK.-— 1. Service ot Summons on Officers of 
CoHPORATiON. — Service must he on one of the officers 
mentioned in Suhdivision 1 of this section. — Aiken vs. 
Mariposa Mining Co., 6 Cal., p. 186; and a return is 
insufficient which states that service was made on J. S., 
one of the " proprietors " of a company; it must state 
that such person was either ** President or head of the 
corporation, Secretary, Cashier, or managing agent 
thereof."— 0*Brien vs. Shawns Plftt and Tuolumne 






284 Code of Civil Procedure. 

Canal Co., 10 Cal., p. 843; Adams & Go. vs. Town, 3 
Cal., p. 247. 

2. Service of Summons on Officers or Corpcra- 
TION. — Where the return of the Sheriff stnted that 
Borvice was made "On A. and B., the President and 
Secretary of the corporation," it was held that it was 
primary evidence that the persons named were such 
officers, and that the return was not erroneous on 
account of its fomj. — Rowe vs. Table Mt- W. Co., 10 
Cal.. p. 441; Wilson vs. Spring Hill Q. M. Co., 10 
Cal., p. 445. 

3. Service on Officers of Corporation — Man- 
aging Agent defined. — In a case where the corjwra- 
tion was a banking firm, it was held that service on 
the *' Teller ^^ of the bank was not sufficient. It must 
be strictly on the President, or other head of the cor- 
poration, Secretary, Cashier, or managing agent.— 
Kennedy vs. H. S. & L. Society, 38 Cal., p. 154. If 
service is made on an agent of a corporation, it must 
be on the managing agent, and not on one of its gen- 
eral business agents. — See Kennedy vs. H. S. & L. 
Society, 38 Cal., p. 154. At common law, service was 
required on the President or principal officer of the 
corporation. — Aug. & Ames on Corp., Sec. 637; 1 
Tidd's Pr., p. 116; McQueen vs. Middlesex Man. 
Co., 16 John., p. 6. 

4. Infant under fourteen years of age how 
SERVED. — When the suit is against a minor under the 
age of fourteen, service is to be made by delivering a 
copy of summons and complaint to him personally^ 
and, alsoy to his father, mother, or guardian, etc.; and 
in cases where such infant resides out of the State, and 
his residence is known to plaintiff, a copy of the sum- 

« 

mons should be deposited in the Post Office directed to 
the infant in the same manner as if he were over four- 
teen. — Gray vs. Palmer, 9 Cal., p. 638. 

5. What constitutes Personal Service.— The 
personal service of wiit'j and process can only be made 
by delivering a copy to the party upon whom the ser- 
vice is required. So far as summons is concerned, the 
statute designates this mode (Sec. 411). Independent 
of the statute, the mode would be by showing the origi- 
nal under the seal of the Court, and delivering a copy. 
Edmondson vs. Mason, 10 Cal., p. 388. 

6. Service of Summons— Redelivery and Sbr- 
viCB AFTER RETURN. — After a summons has been 
served on some of the defendants and returned, the 
Court may order that it should bd redelivered to plain- 



Code of Civil Procedure. 285 

tiff for further service on other defendants, either in the 
same or another county. — Hancock vs. Prcuss, 40 Cal., 
p. 572, 

412. (§ 30.) AVliere the person on whom the ser- Pabiication 
vice is to be made resides out of the State, or has ,^,^Ji,"^nt' 
departed from tlie State, or cannot, after due diligence, Ototofcon- 
be found %vithin the State, or conceals himself to avoid foreign 

, corporation 

the service of summons, or is a foreiffu corporation having no 

^ ^ agont* etc 

having no managing or business agent. Cashier, or 
Secretary within the State, and the fact appears by 
affidavit to the satisfaction of the Court, or a Judge 
thereof, or a County Judge, and it also appears by 
such affidavit, or by the verified complaint on file, that 
a cause of action exists against the defendant in respect 
to whom the service is to be made, or that he is a 
necessary or proper party to the action, such Court or 
Judge may make an order that the service be made 
by the publication of the summons. 

NoTK.— -1. Applicable to CoRPORATioNS.—This 
section would have been applicable to corporations 
without specially mentioning them — the word '* per- 
son " covering artificial as well as natural persons. — 
See Douglas vs. Pacific M. S. S. Co., 4 Cal., p. 304. 

2. Section to bk strictly pursued. — It has 
been held that the sections providing for the service of 
summons on a defendant by publication, were in dero- 
gation of the common law, and muf-t be strictly- purpued. 
Ricketson vs. Kichard^on, 26 Cal., p. 152; Joidan vs. 
Giblin, 12 Cal., p. 102; Braly vs. Seaman, 30 Cal., p. 
617; Forbes vs. Hyde, 31 Cal., p. 342; People vs. Hu- 
ber, 20 Cal., p. 81; McMinn vs. >Vhelan, 27 Cal., p. 
309; but see Sec. 4, ante, and see Hahn vs. Kelly, 34 
Cal., p. 391. 

3. Requisites of Affidavit for Order of Pub- 
lication.— Sees. 412 and 413 treat of the same general 
subject, and they must be read together for the purpose 
of ascertaining what the affidavit and order should con- 
tain in order to satisfy the law and make the service 
complete. It must appear from the affidavit that the 
person upon whom service is to be made either 
resides out of the State, or has departed from the 
State, or cannot, after duo diligence, be found within 
the State; or that he conceals himself to avoid ser- 



286 Code of Civil Procedurb. 

vice, and that the plaintlfT has a cause of action 
against him; or that he has a cause of action to the 
complete determination of which he is a necessary 
or proper party; and also whether his residence is 
known, and if known, it should be stated. An affi- 
davit which merely repeats the Iai>i:uage or substance 
of the statute is not sufficient. Unavoidably, the stat- 
ute cannot go int<.» details, but is compelled to content 
it<elf with a statement of the ultimate facts which 
must be made to appear, leaving the details to be sup- 
plied by the affidavit from the facts and circumstances 
of the particular case. Between the statute and the 
affidavit there is a relation which is analogous to that 
existing between a pleading and the evidence which 
supports it. The ultimate facts of the statute must be 
proved, so to speak, by the affidavit, by showing the 
probatory facts upon which each ultimate fact depends. 
These ultimate facts are conclusions drawn from the 
existence of other facts, to disclose which is the s(>ecial 
office of the affidavit. To illustrate: it is not sufficient 
to sUite generally that afler due diligence the defendant 
cannot be found within the State, or that the plaintiiT 
has a good cause of action against him, or that he is a 
necessary party; but the acts constituting due diligence, 
or the facts showing that he is a necessary party, should 
be stated. To hold that a bald repetition of the statute 
is sufficient, is to strip the Court or Judge to whom the 
application is made of all judicial functions, and allow 
the party himself to determine, in his own way, the 
existence of jurisdictional facts — a practice too danger- 
ous to the rights of defendants to admit of judicial 
toleration. The ultimate facts stated in the statute are 
to be found, so to speak, by the Court or Judge from 
the probatory facts stated in the affidavit, before the 
order for publication can be legally entered. The affi- 
davit must show whether the residence of the person 
upon whom service is sought is known to the affiant, 
and if known, the residence must be stated. It is true 
that this is not required in terms in Sec. 412, which is 
more especially devoted to the affidavit; but, as we 
have already said, the whole statute upon the subject 
of service by publication is to be read together, and 
Sec. 4ia requires that where the residence is known the 
order shall direct a copy of the summons and complaint 
to be forthwith de]x>sited in the Post Office, directed to 
the person, to be served at his place of residence. In 
granting the order, the Court or Judge acts judicially 
and can know nothing about the facts upon which the 
order is to be granted, except fh>m the affidavit pre- 



Code of Civil Procedure. 287 

sented by the applicAnt. — Ricketson vs. Richardson, 26 
Cal., p: 152. See, also, Brady vs. Seaman, 30 Cal., 
p. 617; Jordan vs. Giblin, 12 Cal., p. 100. 

4. Affidavits to obtain okder of Publica- 
tion—What FACTS MUST BK STATED THKRKIN. — 
Section 412 provides, that ** when the person to whom 
service is to be made resides out of the State, * * * 
and the fact shall appear, by affidavit, to the satisfaction 
of the Court, or a Judge thereof, * * * such Court, 
or Judji^e, may grant an order that the service be 
made by publication of summons.'^ The fact must 
appear by affidavit be/ore Jurisdiction to make the 
order attaches. That is to say, there must be an affi- 
davit containing a statement of some fact which would 
be legal evidence, having some appreciable tendency to 
make the jurisdictional fact appear, for the Judge to 
act upon before he has any jurisdiction to make the 
order. Unless the affidavit contains some such evi- 
dence* tending to establish every material jurisdictional 
fact, the Judge has no legal authority to be satisfied, 
and, if he makes the order, he acts without jurisdiction, 
and all proceedings based upon it are void. But he is 
only to be satisfied upon some evidence presented in 
the form prescribed; and if the affidavit presents legal 
evidence which has an appreciable tendency to prove 
every material jurisdictional fact, and the mind of the 
Judge is too easily satisfied, this is but error; for he was 
authorized to weigh the testimony, and if satisfied, 
make the order. It is, therefore, not void, but erro- 
neous. — Forbes vs. Hyde, 31 Cal., p. 350. 

6, Affidavit must show Caus£ of Action.— The 
statute provides tha^: **When the person on whom 
service is to be made resides out of the State, « « * 
and the facts shall appear by affidavit, * * « and it 
shall in like manner appear that a cause of action exists 
against the defendant in respect to whom service is to 
be made, or that he is a necessary or proper party to 
the action, such Court or Judge may grant an order," 
etc. The existence of a cause of action, etc., then, is 
also a jurisdictional fact which must appear ^*tn like 
manner,** that is to say, by affidamU The statute as 
clearly makes a cause of action, as non-residence a juris- 
dictional fact, and we can no more disregard the one 
than the other. If this fact does not appear by the affi- 
davit upon which the order for publication was founded, 
then there was a want of jurisdiction, and the order and 
publication are void. The only statement in the affida- 
vit is the following: "Deponent further says, that he is 
a oounselor at law and resides in this city, and that he 



288 Code op Civil Procedure. 

has a good cause of action in this suit against the said 
defendant, and that he is a necessary and proper party 
defendant thereto, as he verily believes." "What "fact 
appears by affidavit '' here? Simply that the affiant be- 
lieves he has a good cause of action in this suit against 
defendant, and believes that Harris is a necessary and 
proper partj' defendant. But such an averment is nei- 
ther the statement of an ultimate fact, such as is required 
to be stated in a pleading, nor of a probative fact from 
which such ultimate fact may be deduced, nor a fact of 
any sort which in any way legally tends to prove such 
ultimate or probative fact, or from which it may be 
inferred. It is not the statement of a fact at all. It is 
merely the statement of the opinion of the witness in 
relation to a point upon which the Judge is required to 
form his own opinion upon facts which must appear by 
affidavit. The Judge may have entire confidence in the 
ability of the affiant as a lawyer, and in his opinion 
upon a question of law, and the witness may be equally 
well qualiiied to determine the point; but the law does 
not permit him to act upon such confidence or qualifi- 
cations. Facts are the proper and only proper subjects 
to be set out in affidavits under the provisions of the 
statute to serve as the basis of judicial action. The 
affiant's general expression of opinion or belief, with- 
out the facts upon which it is founded, is in no sense 
legal evidence, and does not tend in any degree to prove 
the jurisdictional facts, without which the Judge had 
no authority to make the order. — Forbes vs. Hyde, 31 
Cal., p. 353. Under this section of the Code the com- 
plaint, if verified, may be used to show that a cause of 
action exists. 

6. Affidavit that Defendant was conceal- 
inq himself — could not be found after dub 
DILIGENCE, ETC. — An affidavit of an attorney for the 
plaintiff for an order of publication of summons on 
defendant which show that diligent search had been 
made for him by the Sheriff, and that he was conceal- 
ing himself to avoid service, was held to be sufficient. — 
Anderson vs. Parker, 6 Cal., p. 201. The affidavit 
states that the defendant, D. C. Seaver, was at the 
time a resident of the First Township, in the County of 
Contra Costa; that he had occupied a house on a tract 
of land claimed by him to be his own, and which he 
had cultivated up to the commencement of the suit, 
and for a long time previous; that on the twenty-sec- 
ond day of October, the day before the commencement 
of the suit, he left his residence, informing his servants 
that he would be back that evening or the next day; 



Code of Civil Proceburb. 289 

that the summons in the suit was put in the hands of a 
proper Constable, who made diligent search and was 
wholly unable to serve it; that Seaver had not returned 
to his residence, and that he believed that he concealed 
himself for the purpose of avoiding the service of the 
summons; and that the claim sued on is a just debt. 
The return of the summons by the Constable, is *' not 
found in the county." The return of the officer that 
the party could not be found is sufficient evidence of 
proper diligence, and the affidavit of the plaintiff in 
that action showing that the defendant resided in the 
township and county, and the facts respecting his 
absenting himself from his home, show sufficient to 
entitle the plaintiff to the order of publication. — Seaver 
vs. Fitzgerald, 23 Cal., p. 90. An affidavit for order 
of publication of summons stating that defendant C. 
oould not, after due diligence, be found in the county; 
that inquiry had been made of one F., an intimate 
jfHend of defendant, as to his whereabouts, and F. wag 
unable to give the information, and that plaintiff did 
not know where defendant could be found within the 
State, was held to be insufficient. The affidavit does 
not show that defendant had left the State, or that any 
diligence had been used to ascertain his whereabouts 
beyond inquiry of a single individual, and no pretense 
was made that defendant was concealing himself to 
avoid service. — Swain vs. Chase, 12 Cal., p. 285. 

7. Residence when known to be stated. — 
Kesidence, if known, should be stated in the affidavit. — 
Gray vs. Palmer, 9 Cal., p. 637. I 

8. Affidavit made a long time before Obdeb 
OF Publication. — Objection was made that it was 
incompetent for the Court to make the order upon 
affidavits some four months old — it is plain to our 
minds, from an examination of Sees. 412 and 413 of 
the Code, that the affidavits should be prepared with 
reference to the condition of things as they exist at the 
time when the order for publication is applied for— -the 
residence of the defendant, or the inability to find him 
at that time. The proceedings are to follow each other 
in reasonably quick succession. The order for publi- 
cation, when made, must *' direct a copy of the sum- 
mons and complaint to be forthwith deposited in the 
Post Office, directed to the person, to be served at his 
place of residence,'' when known. It must not only 
be deposited, but it must be done " forthwith." The 
object of the statute is, if possible, to secure actual 



/ 



37 — Vol. I. 



290 Code of Civil Procedure. 

notice of the pendency of the action. In this and the 
• ' neighboring States and Territories, the residences of a 

large portion of the people are notoriously temporary. 
It is important, therefore, that the inquiiy as to resi- 
dence should be directed to the time when the order 
and deposit in the Post Office is to be made; and wc 
have no doubt that it was so Intended by the Xiegis- 
lature. If an affidavit can be used as the basis of 
an order which was made four months before the order, 
it can be used when made four years before; and in 
both cases there would be great probability that the 
notice contemplated by the statute would fiiil of reach- 
ing the defendant. In many instances the party to be 
served may have returned, and could be easily, if in- 
quiry were to be made at a later- period. In People vs. 
Huber, 20 Cal., p. 82, the Court say: "The Practice 
Act contemplates that the Judge must be satisfied by 
affidavit of the absence of the defendant at the lime he 
is applied to for his order, and when it is to take effect. 
If an order might be procured in advance, and held 
four days before taking out the summons, it might be 
BO held for a much longer time, so that when the sum- 
mons actually issues the defendant may have returned 
to the State.'' We have no doubt of the correctness of 
this view. If the question were presented to us on 
appeal from the judgment, we should not hesitate to 
reverse it, on the ground that the affidavits, made so 
long a time before obtaining the order for publication 
based on them, would be totally insufficient to show a 
1 non-residence, or absence from the State, or that the 

defendant could not, after due diligence, be found 
within the State at the time of procuring the order. — 
Forbes vs. Hyde, 31 Cal., p. 351. 

^i* Manner of 418. (§81.) The Order must direct the pablica- 

publication , , 

* and ap- tion to be made in a newspaper to be designated, as 
of attorney, most llkelj to give notice tb the person to be served. 



^ 



and for such length of time as may be deemed reason- 
able, at least once a week; but publication against a 
defendant residing out of the State, or absent there- 
from, must not be less than two months. In case of 
pubhcation, where the residence of a non-resident or 
absent defendant is known, the Court or Judge must 
direct a copy of the summons and complaint to be 
forthwith deposited in the Post Office, directed to the 



Code of Civil Procbburb. , 291 

person to be served, at his place of residence. When Same, 
publication is ordered, personal service of a copy of 
the summons and complaint, out of the State, is equiv- 
alent to publication and deposit in the Post Office. In 
either case, the service of the summons is complete at 
the expiration of the time prescribed by the order for 
publication. In actions upon contracts for the direct 
payment of money, the Court in its discretion may, 
instead of ordering publication, or may after publicar 
tion, appoint an attorney to appear for the non-resident, 
absent, or concealed defendant, and conduct the pro- 
ceedings on his part. 

Note. — 1. Addition a.l Bequikements uitdeb 
Statute 1871-2.— The Legislature of 1871-2 passed the 
following Act: 

Stats. 1871-2, p. 892. 

An Act concerning service of summons upon absent 
defendants by publication, 

[Approved March 15, 1872.] 

[Enacting clause.] 

Section 1. In all cases where, by order of any 
Court, service of summons is directed to be made upon 
any absent defendants by publication, it shall be the 
duty of the plaintiff in such action to file in the office 
of the Secretary of State, within fifteen days after the 
making of such order, a duly certified copy of such 
order for publication, together with a copy of the sum- 
mons in said action, and of the newspaper containing 
the publication thereof. 

Sec. 2. For his services in filing and indexing the 
order, summons, and newspaper in which pubHcation 
is made, in each action, and for issuing his certificate of 
the receipt and filing thereof, the plaintiff shall pay to '^ 

the Secretary of State the sum of one dollar, to be paid •». 

into the State Treasury and accounted for as by law ^^ 

provided in the case of other fees collected in said t^ 

office. • 

Sec. 3. The Secretary of State, on receipt of the ^l 

papers above mentioned and on payment of the fee ,^^ 

above mentioned, shall issue to the plaintiff in said 
action his certificate, under his hand and official seal, 
specifying the title of the action, the Court in which the 
ftame is brought, the names oT the defendants as to 




f 



292 Code of Civil Procedure. 

whom publication of summons was directed to be made, 
and the date at which the same were filed in his office. 
He shall also» in a book to be provided for that purpose, 
index the names of the defendants as to whom publica- 
tion of summons was directed to be made, and note 
therewith the title of the action, the Court in which 
such action is brought, the papers therein filed in his 
ofiice, and the date of filing the same; and shall also 
indorse the date of the filing upon said papers, and 
preserve the same in his office for reference by all per- 
'' sons interested therein; and the said book and said 

papers shall at all times be open to the gratuitous in- 
spection of all persons applying to examine the same. 
Said book shall be known and referred to as the " Reg- 
ister of Absent Defendants.** 

Sec. 4. Tlie plaintiff in such action shall file the 
certificate of the Secretary of State above mentioned 
with the Clerk of the Court in which such action is 
brought, together with the proof of publication of the 
summons therein, and service of summons by publica- 
tion shall not be deemed to be complete as to any absent 
defendant without the filing of said certifiaite as above 
required. 

2. FoKM OF Order for Publication—When it 

MAY BE ISSUED, AND WHAT FaCTS MUST BE STATED. 

An order to publish a summons cannot be made in 
advance of the issuance of the summons. If, after 
complaint filed and before any summons was issued, 
^,^^ the Judge ordered tliat ** summons do issue," and that 

' . it be published, and without any further order sum- 

mons was subsequently issued and published, the Court 
y did not acquire jurisdiction, and the order was a nullity. 

A Judge cannot order a summons to issue, but can 
only order a summons already issued to be served in a 
•^ special manner. — People vs. Huber, 20 Cal., p. 81. 

y^ 3. Publication of Summons on supplemental 

Complaint where Summons was published on 
ORIGINAL Complaint. — If an order is made for pub- 
lication of summons, and a summons is issued, and a 
*^ supplemental complaint was afterwards filed and a 

• v* summons issued thereon, the original action becomes 

merged in the action as supplemented, and the Court 
will not acquire jurisdiction of the person of absent 
defendants by publication of the original summons, but 
the summons issued on the supplemental complaint 
must be published also. — ^McMinn vs. Whelan, 27 
Cal., p. 300; see, also, Forbes vs. Hyde, 31 Cal., p. 
342; People vs. Huber, 20 Cal., p. 81; see, also. Law- 



• 



* 



Code of Civil Procedure. 298 

rence vs. Bolton, 3 Paige, p. 295; Scudder vs. Vorhis, 
1 Barb., p. 55. 

4. OrDKR DK8I0NATI^^G NEWSPAPER NEED NOT 

STATE WHAT. — The ofdcF of publication is not defec- 
tive because in designating the newspaper in which to 
publish the summons, it did not state that such paper 
was " most likely to give notice to the person to bo 
served,** or which summons was to be thus published. 
The order directs the summons to be published in a 
certain newspaper, with the time it was to be thus pub- 
lished, and the presumption is that the Justice desig- 
nated such particular paper because it was most likely 
to give notice to the person to be served, but it was not 
necessary for him to state in the order that such was 
his reason.— Sea ver vs. Fitzgerald, 23 Cal., p. 91. 

5. Published Summons must agree with Ori- 
ginal Summons. — The summons cannot be altered, 
and no new matter can be interpolated, after the order 
for its publication is made. It must be published in 
the form in which it existed when the order for its 
publication was made.— McMinn vs. Whelan, 27 Cal., 
p. 314. But if a compari-son of the published sum- 
mons with the original shows that the differences be- 
tween the two are purely literal, and the sense and 
meaning of the original and of the published version 
of the summons are identical, that is enough. — Sharp 
vs. Daugney, 33 Cal., p. 513. 

6. Constitution A I ity of Section, so far as it 
relates to Appointment of Attorney, etc. — It 
has boon contended that this section, so Ikr as it allows 
the Court to appoint attonieys for defendants in lieu 
of publication, wa.s "unconstitutional and against the 
principles of fi-oc government," under the provision in 
the Constitution that no person shall "be deprived of 
life, liberty, or property without due process of law.** 
But the constitutionality of this section was upheld by 
the Court, in Ware vs. Robinson, 9 Cal., p. 111. 

7. When the Cox:rt mat Appoint Attorney. — 
If the defendant is concealed for the purpose of avoid- 
ing service. — See Ware vs. Robinson, 9 Cal., p. 107. 
Where the defendant cannot, after due diligence, be 
found.— See Jordan vs. Giblin, 12 Cal., p. 100. See, 
also, as to judgment against defendants in such cases, 
Sec. 473, post, whore within six months of rendition of 
judgment the Court may allow defendant to answer to 
the merits of original action; and in this connection 
see Jordan vs. Giblin, 12 Cal., p. 100. 

8. How Time of Publicativin is computed.— For- 
merly publication was required (against a non-resident 



294 Code of Civil Procedure. 

of the State) to be at least once a week, and for a time 
" not less than three months." Under the law as it 
then stood, it was held that a summons published 
**fh)m the 10th of January to the 9th of April, inclu- 
sive," was published for the period of three full calen- 
dar months. The 9th of January and the 10th of April 
cannot be included. The summons had been published 
for three calendar months at the close of the 9th day 
of April, and the first day of the forty within which 
defendant was required to answer was on the 10th of 
April.— S. & L. Society vs. Tliomp?on, 32 Cal., p. 350. 
Where the last day of the publication of a summons 
occurs in the same week in which the three months 
expires, the publication was held to have been made 
for a sufficient time, and the Court has acquired juris- 
diction, although this day is not fully three months 

• 

from the first day of publication. — S. & L. Society vs. 
Thompson, 32 Cal., p. 352; see, also, Bonkendorff vs. 
Taylor's Lessees, 4 Pet., p. 361. The month contem- 
plated by this section (413) is a calendar, not a lunar 
month. — S. & L. Society vs. Thompson, 82 Cal., p. 
350; Sprague vs. Norway, 31 Cal., p. 173; see Sec. 17, 
ante, Subd. 6. 

9. Mailing Summons and Complaint directed 
TO RESIDENCE OF DEFENDANT. — If the residence of a 
non-resident of the State or an absentee is known, a 
copy of the complaint and summons must be put into 
the Post Office, directed to such defendant at his place 
of residence, and this is the case also as to an infant 
under the age of fourteen years. — Gray vs. Palmer, 9 
Cal., p. 638. 

10. Defendant has Fortt Days after last day 
OF Publication to Answer. — The defendant, after 
the last day of publication, has forty days in which to file 
answer. Service of sumpions is complete at the expi- 
ration of the period of publication and the time for 
answering commences to run at that time. — Grewell 
vs. Henderson, 5 Cal., p. 465; see, also, S. & L. Soci- 
ety vs. Thompson, 32 Cal., p. 352. 

11. Justices' Practice— Order of Publication 
MADE BY Justice of the Peace. — This and the fol- 
lowing section are made specially applicable to Jus- 
tices' Courts. — See Sec. 849, post. Section 845, post, 
relating to practice in Justices' Courts, fixes twelve 
days as the time within w^hich summons must require 
defendant to answer; but Sec. 849, by permitting 
service to be made by publication, necessarily requires 
that the time should exceed ten days, and that the 
provisions of this section (412) and the following 



CoDK OF Civil Pboobbubb. ?96 

sectiooL (413) should be pursued in Justices' Courts. — 
Hisler vs. Carr, 34 Cal., p. 646; see, also, Seaver vs. 
Pitzgerald, 23 Cal., p. 86. 

12. General effect oy Judgment obtained by 
Publication of Summons, etc.— A judgment ob- 
tained by publication of summons against a defendant 
out of the State in which the judgment is rendered, 
though it may be enforced against his property in that 
State, has no binding force in personam, and is a mere 
nullity when attempted to be enforced in another State. 
Kane vs. Cook, 8 Cal., p. 449; see note to Sec. 415, post. 

13. When Judgment may be attacked fob 
defect in Affidavit or Order for Publication. 
See the very elaborate opinions in the case of Hahn vs. 
Kelly, 34 Cal., p. 891, contained in note to Sec. 415, 
post; also, Jordan vs. Giblin, 12 Cal., p. 100; People 
vs. Hubor, 20 Cal., p. 81; Forbes vs. Hyde, 31 Cal., p. 
842; Braly vs. Seaman, 30 Cal., p. 610. 

414. (§ 32.) When the action is against two or Proceed- 

\** ' c* ings wh«ro 

more defendants jointly or severally liable on a con- J5®JJ^' 
tract, and the summons is served on one or more, but Jjd pSf^ 
not on all of them, the plaintiff may proceed against wrvod!* 
the defendants served in the same manner as if they 
were the only defendants. 

Note.— 1. Constbuction of Section Generallt. 
Sec. 32 of the Practice Act, from which this section is 
taken, reads as follows: 

Sec. 32. Where the action is against two or more 
defendants, and the summons is served on one or more, 
but not on all of them, the plaintiff may proceed as 
follows: 

1. If the action be against the defendants jointly 
indebted upon a contract, he may proceed against the 
defendant served, unless the Court otherwise direct; 
and if he recover judgment, it may be entered against 
all the defendants thus jointly indebted so far only as 
that it may be enforced against the joint property of 
all, and the separate property of the defendant served; 
or, 

2. If the action be against defendants severally liable, 
he may proceed against the defendants served in the 
same manner as if they were the only defendants. 

This section provides that ** if the action be against 
defendants jointly indebted upon a contract he may 
proceed against the defendants served, unless the Court 
otherwise direct "—that is to say, unless the Court re- 



296 CJoDE OP Civil Procedure. 

quires the other defendants to be served before pro- 
ceeding to trial and judgment. If he does "proceed 
against the defendant served,'' the section provides 
that he shall take judgment against all of the defend- 
ants, to be enforced against the joint property of all 
the defendants, and the separate property of those 
served. By the terms of the statute, the plaintiff pro- 
ceeds only against the defendants served, and judg- 
ment is entered against them, but not against those 
who were not served. The defendants not served are 
not bound by the judgment, nor are they personally 
liable for its satisfaction; but the statute provides that 
the property in which they are jointly interested with 
the other defendants may be taken in execution for 
the satisfaction of the judgment. This provision of 
the statute will hereafter be noticed. "When cases in- 
volving this or similar provisions of the statutes of 
other States have be^ti under consideration, it has 
been repeatedly held that the statute changed the com- 
mon law rule, which is that in an action upon a joint con- 
tract the plaintiff must recover against all or none. — 
People vs. Frisbie, 18 Cal., p. 402; Lewis vs. Clarkin, 
id., p. 399. The language of those cases clearly in- 
dicates that, under the statutory rule, the plaintiff 
may recover upon a joint contract against one, or any 
number less than all of the joint debtors — ^that is to 
say, he may take judgment in the usual form against 
those served, and, in addition, the judgment may be 
enforced against the joint property of all the joint 
debtors. But the judgment is against those only who 
were served with process. Tlie statute provides that 
the "joint property" of all the defendants may be 
taken in execution for the satisfaction of the judg- 
ment, but none of the cases in this Court defines such 
joint property. We have not noticed in any of the cases 
in New York that the question has been distinctly 
passed upon as to what property constitutes the "joint 
property" mentioned in the statute; but it is assumed 
in several cases that it is partnership pTx>perty which 
is meant by that term. — Mason vs. Denison, 15 Wend., 
p. 64; Maroni vs. Kumbel, 23 Wend., p. 293; Sterne 
vs. Bentley, 3 How. Pr. R., p. 331. In Mason vs. 
Denison, it is said that the term applies to the property 
which one defendant might apply to the satisfaction 
of the debt, without consulting his co-contractor. Ac- 
cepting the restriction indicated in that case, or even 
limiting the meaning of "joint property" to partner^ 
ship property of the persons alleged to be joint debtors, 
we are utterly unable to see how a judgment that is to 



Code of Civil Procedure. 297 

be enforced against the interest in such property of a 
person who has not been served with process, and has 
not appeared in the action, can be maintained. It is a 
cardinal principle of jurisprudence that a judgment 
shall not bind or conclude a man, either in respect to 
his person or property, unless he has had his day in 
Court. No person shall be deprived of life, liberty, or 
property without due process of law, says the Consti- 
tution; but this principle is older than written Consti- 
tutions, and, without invoking the constitutional dec- 
laration, every person may, as a matter of common 
right, insist that he be heard in his own defense before 
judgment passes which binds, charges, or injuriously 
affects his person or his estate. It is no answer to say 
that the judgment affects only the joint property of the 
defendants — property that either of the debtors might 
apply to the satisfaction of the common debt — for that 
assumes that the defendants are joint debtors, and that 
may be to the defendant who is not served the vital 
point of the controversy. He may be ready to admit 
every allegation of the complaint, except that he is a 
party to the contract; or he may even admit the con- 
tract, and yet be ready, if an opportunity were pre- 
sented, to make a successful defense, on the ground of 
fraud, failure of consideration, payment, accord and 
satisfaction, etc. The defendant who is served may be 
ignorant of the defenses upon which his co-defendants 
would rely; or he may, either negligently or purposely, 
omit to present them. And, whatever his answer may 
be, he only appears for himself; and there is nothing 
in the law regulating the acquisition or disposition of 
joint property which confers upon one joint owner the 
right to defend actions for his fellows. Unless it can 
be shown that such property is under the ban of law, 
a judgment which subjects to execution the interest of 
a^rson who has had no opportunity to be heard in 
the action cannot be upheld without violating princi- 
ples which lie at the base of all judicial proceedings. — 
Tay, Brooks & Backus vs. Hawley, 39 Cal., p. 95. 

2. CoNSTiTDTioifALiTY OF SECTION.— See NoteNo. 
1. There have been several cases in this Court involv- 
ing the consideration of this statute, and this question 
does not seem to have been presented or considered, but 
the validity of the statute seems to have been tacitly as- 
sumed. In New York the validity of a similar statute 
is recognized, and actions on the judgment have been 
maintained against the defendants not served. — ^Dando 



38— Vol. L 



298 CoDB OF Civil Procedure. 

vs. Tremper, 2 Johns., p. 87; Bank of Columbia ts. 
Newcomb, 6 id., p. 98; Taylor vs. Pettibone, 16 id., p. 
66. In the Bubsequent case of Mervin vs. Kumbel, 23 
Wend., it was considered that the authority of those 
cases was binding upon the Court; but it is evident 
from the opinions delivered in the case, and particu- 
larly that of Mr. Justice Bronson, that the judgment, 
so fiir as it affects the defendants not served, cannot be 
sustained on any sensible or even plausible ground. To 
say that a person is liable to an action on a judgment, 
but that he may, in that action, litigate the cause of 
action upon which the judgment was rendered — to hold 
that he may be sued upon the judgment, but that, if he 
pleads the proper matters in defense, the judgment la 
not even prima facie evidence against him — ^is, to our 
minds, altogether unsatisfactory and illogical. There 
is a further ground for holding that the defendant who 
was not served is not a proper party to an action on the 
judgment. Provision is made in the Code by which a 
defendant who was not originally served with the sum- 
mons may be bound by the judgment. (Sees. 989 to 
994.) He is summoned to show cause why he should 
not be bound by the judgment, and he may answer the 
complaint, as he might have done had he been origi- 
nally served, or he may deny the judgment, or may set 
up any defense that may have arisen subsequently to 
the judgment. These proceedings furnish, in our opin- 
ion, the exclusive mode by which he can be bound by 
the judgment, and they necessarily imply that he is not 
already bound by it. The action is really an action on 
the original joint contract, and matters of defense in 
respect to the judgment are merely incidental to the 
action. Were it not for the statute, no action could be 
maintained against him on the contract, for the reason 
that it would become merged in the first judgment; 
and the merger is restrained only for the purpose and 
to the extent of enabling the proceedings to be had as 
prescribed in the statute. Those provisions of the 
statute are useless if it is true that an action can be 
maintained on the judgment against a defendant not 
served in the former action. — Tay, Brooks & Backus 
vs. Hawley, 39 Cal., p. 97. 

8. Pjcssokal Judgment cannot bb entered 
against one oe 8bvebal defendants jointly 
LIABLE. — In an action against defendants jointly liable 
it was held to be error to enter a personal judgement 
against one of the defendants who was not served with 
process.— Treat vs. McCall, 10 Cal., p. 612. And 
where all defendants were jointly liable and all served. 



CoDB OF Civil Procedure. 299 

judgment by default cannot be entered against one of 
them. This section of the Code applies only where all 
of the defendants have not been served. — S^ams vs. 
Aguirre, 7 Cal., p. 449. 

4. Skction not applicable to Forbclobinq Suits. 
It was held that this provision » which, in an action 
against two or more defendants, all of whom were not 
served with process, authorized judgment to be entered 
to bind the joint property of all, did not apply to pro- 
ceedings for the foreclosure of a mortgage upon real 
estate.— Bowen vs. May, 12 Cal., p. 351. 

5. ApP£ARAKC£ recited IK RsCORD CONVINED TO 

Parties served. — Where the record recites in gen- 
eral terms the appearance of the parties, such appear- 
ance will be confined to those parties served with 
process. — ^Miller vs. Ewing, 8 S. & M., p. 421; Tamey 
vs. Jordan, 4 How., Miss., p. 401; Dean vs. McKinstry, 
2 S. & M., p. 213; Edwards vs. Traner, 14 S. & M., p. 
76; Chester vs. Miller, 13 Cal., p. 560. 

6. "Where Plaintiff waives right to delay 
Trial until all the Defendants were served.— 
See Meagher vs.* Gagliardo, 35 Cal., p. 602. 

7. Judgment cannot be had against Defend- 
ant NOT SERVED. — In an action against defendant sued 
as partners it was held that to sustain a judgment 
against a defendant he must be served with process, or 
brought into Court through some of the forms of law. 
Ingraham vs. Oildemeester, 2 Cal., p. 89; see, also, 
Estell vs. Chenery, 3 Cal., p. 468. And where process 
was not served on a party in a suit against several 
defendants jointly liable, he cannot be made a defend- 
ant in a suit upon the judgment against the party 
served. — Tay vs. Hawley, 39 Cal., p. 93. 

8. Actions against Defendants beyerallt 
liable, and Action against Defendants jointly 
LIABLE. — It was held that ** if the action be against 
defendants severally liable, the Clerk can, upon appli- 
cation of the plaintiff, enter judgment upon default 
against the parties served, without regard to the other 
parties named in the complaint. If the action be 
against defendants jointly and not severally liable, and 
only a portion of them are served, the Clerk can also, 
upon like application, enter judgment; but in that case 
it must be entered against all the defendants, and so as 
to be enforced against the joint property of all, and the 
separate property of those served. — Kelly vs. Van Aus- 
tin, 17 Cal., p. 566. But see Tay vs. Hawley, supra. 

9. For several Judgments against Defend- 
ants, etc.— See Sees. 578, 579, post. 



i 



800 Code of Civil Procedure. 

10. When one or more may Sue or Defend 
FOR ALL.~See Sees. 382, 383, 384, ante. 

11. For Proceedings against joint Debtors. — 
See Sees. 989-994. 

Proof of 415. (§§ 33, 34.) Proof of the service of sammons 

BorTice, ^ ' ^ 

how made, and complaint must be as follows: 

1. If served by the Sheriff, his certificate thereof; 
2: If by any other person, his affidavit thereof ; or, 

3. In case of pubH cation, the affidavit of the printer, 
or his foreman, or principal clerk, showing the same; 
and an affidavit of a deposit of a copj^ of the summonB 
in the Post Office, if the same has been deposited; or, 

4. The written admission of the defendant. 

In case of service otherwise than by publication, 
the certificate or affidavit must state the time and 
place of service. 

Note. — 1. "What is meant by Proof of Ser- 
vice — Effect of Judgment on defective Service. 
Said Sanderson, J., in his elaborate and able opin- 
ion in the case of Hahn vs. Kelly, 34 Cal., p. 403: 
" There are two modes of obtaining jurisdietioD over 
the person of a defendant: first, by personal ser\'ice of 
the summons, with a copy of the complaint; Beoond, 
by constructive service, or what is commonly desij^- 
nated publication of summons. The former may be 
made by the Sheriff of the county where the defendant 
is found, or by his deputy, or by a person specially 
appointed by him, or appointed by a Judge of the 
Court in which the action is brought, or by any white 
male citizen of the United States over twenty-one 
years of age, who is competent to be a witness on the 
trial of this action. The latter is set on foot by an 
affidavit showing the existence of certain facts, in view 
of which, that mode of service is allowed, followed by 
an order of the Court or a Judge thereof, or a County 
Judge, directing publication of the summons to be 
made in some newspaper most likely to give the de- 
fendant* notice, for a certain length of time, which 
varies according to circumstances, and if the residence 
of the defendant be known, also directing a copy of 
the summons and complaint to be forthwith deposited 
in the Post Office, addressed to him at his place of res- 
idence, and is terminated by publication and mailing, 
if the defendant's place of reeidence is known, or by 



Code of Civil Procedure. 801 

personal service out of the State, which is equivalent 
to publication and mailing. Proof of the former mode 
of service is the affidavit or certificate of the officer, if 
the services have been made by an officer, of the fact 
and the time and place of service, or the affidavit of a 
citizen, if service has been made by a citizen, showing 
that he is competent to make the service, and that he 
in fact made it by delivering to the defendant person- 
ally a certified copy of the summons and complaint, 
stating the time and place. Proof of the latter mode 
is the affidavit of the printer, or hi? foreman or princi- 
pal clerk, showing that publication has been made, 
stating where and how long, and an affidavit showing 
a deposit in the Post Office, if such deposit was made 
(Sees. 412, 413, 415). In our judgment, it would have 
added to the completeness of the record to have made 
the proof of service by publication include also the 
affidavit of the party and the order of the Court 
directing publication to bo made, for, in point of law, 
they constitute a part of the mode; but the Legisla- 
ture has not seen proper to do so, and we can no more 
add to their will than we can take from it. So, for the 
purpose of determining whether a want of jurisdiction 
is shown by the records, we can look only to the sum- 
mons, the affidavit of the printer, the complaint, with 
the default indorsed thereon, and the judgment. The 
affidavit of Hawes made for the purpose of obtain- 
ing an order for publication, and the order of the 
Court directing publication, for all the purposes of the 
question before us, must be disregarded, or, in other * 

words, presumed to have been all that the law requires. 
"We are aware that the cases of Braly vs. Seaman, 30 
Cal., p. 610, and Forbes vs. Hyde, 31 Cal., p. 842, 
were considered by us upon the theory that the affida- 
vit of the plaintiff, or of some one else in his behalf, and 
the order of the Court constituted a part of the record 
or judgment roll, and could therefore be consulted on a 
question of jurisdiction if made. In so assuming, for 
the point Was neither made nor considered, we were in 
error. In this connection, it is, claimed on the part of 
the appellant, in effect that we must presume a legal 
service, notwithstanding the proof fails to show it, or 
tends to show the contrary; or, in other words, that if 
the affidavit of Dodge, chief clerk of the Morning or 
Daily Glohe^ or of McClo&ky, who made personal 
service at the City of "Washington, fails to state all 
the facts which the statute has made essential to this 
mode of service, we must presume that some other 
affidavit was actually made, in view of which, the 



802 Code of Civil Procedure. 

Court took jurisdiction, which was sufficient, and which 
for some reason not known was not made a part of the 
judgment roll by the Clerk. Within certain limits 
this is doubtless true, but, thus broadly stated, does it 
not go too far and invoke presumption where none may 
exist ? Is it according absolute verity to the record 
under all circumstances, or is it impeaching the 
record under possible circumstances, upon the ground 
that it misrepresents what actually took place. Un- 
doubtedly if the record is silent as to what was done 
in respect to some material, we will presume that what 
ought to have been done was done. If there is no proof 
of what was done in obtaining service in the record, 
we will presume that legal service was in fact made; 
but when the record shows what was done for the pur- 
pose of obtaining service, how can we presume that 
something different was in fact done. Would not that 
be to join issue with the record and dispute what it says^ 
which we have agreed cannot be done. Where the 
record speakst at all it must be understood to speak the 
truth as to the particular fact of which it speaks, for by 
the law of its creation it can tell no lies, neither direct 
nor circumstantial . This is so not only when the record 
speaks in favor of the jurisdiction, but when it speaks 
against it. Suppose, in a case of attempted personal 
service, the officer should return that he had served the 
summons upon A. B., the son of the defendant, by 
delivering to him personally a copy, and also a copy of 
the complaint, and the remainder of the record is silent 
upon the question of service, could we presume in the 
face of such a record that he served it on the defendant 
also? Undoubtedly not. There would be a want of 
jurisdiction upon the face of the record within the rule 
in hand, and the judgment would be declared a nullity 
whenever and wherever presented in support of a legal 
claim or right. We consider the true rule to be that 
legal preemptions do not come to the aid of the record, 
except as to acts or fhcts touching which the record is 
silent as to what was done. It will be presumed that 
what ought to have been done was not only done, but 
rightly done; but when the record states what wa£ 
done, it will not be presumed that something different 
was done. If the record merely shows that the sum- 
mons was served on the son of the defendant, it will 
not be presumed that it was served on the defendant. 
If the affidavit of the printer shows that the summons 
was published one month, it wiU not be presumed that 
it was published three. To avoid any misapprehension 
we deem it proper to add that, so fkr, we have assumed, 



Code of Civil Procedure. 803 

ibr the purposes of the argument, that the record, aside 
fW>m that portion of it which is denominated the proof 
of service, is silent upon the question of service. 
But it may happen that other portions of the 
record may also speak upon that question; if so, 
what they say is not to he disregarded; on the con- 
trary, in determining the question whether a want of 
jurisdiction is apparent upon the face of the record, we 
must look to the whole of it, and report the responses 
of all its parts. To illustrate: Suppose that portion of 
the judgment roll denominated the " affidavit or proof 
of service," shows that personal service was made upon 
the son of defendant, and the remainder of the roll 
says nothing ahout service, we then have a want of 
jurisdiction appearing upon the face of the record. 
But suppose the judgment states that the defendant 
appeared, or that personal service was made upon him, 
or something else that is equivalent, as it frequently 
does, the opposite result follows, for the record cannot 
lie, and it appears that the father as well as the son 
had heen served, which may well have been the case. 
The record in such a case does not blow hot and cold 
as might be supposed ; on the contrary, both acts may 
have been done. On presentation of the return of 
service upon the son the Court may have declared it no 
ser\'ice, and service upon the father may have been 
subsequently made, and the wrong return may have 
found its way into the judgment roll. To hold thus 
would be consistent with the record, while to hold other- 
wise would be to contradict the judgment. So in the 
case of a service by publication, if the affidavit of the 
printer states that the summons was published one 
month, and yet the Court, in its judgment, states that 
it was published three, or that service has been had 
upon the defendant, it will be presumed that other proof 
than that contained in the judgment roll was made, 
for not to so presume would be to deny to the record 
that absolute verity which must be accorded to it. 
Thus limited or understood, the point made by counsel 
for appellant is doubtless well made. Still less tenable, 
however, is the point made by the respondents, to the 
effect that where it appears that service was obtained 
by publication, nothing will be presumed in &vor of 
the jurisdiction of the Court, but the party relying 
upon the judgment must show affirmatively that the 
Court had jurisdiction; or in other words, that he must 
show an affidavit and order for publication, and an affi- 
davit of publication, in all respects responsive to the 
calls of the statute. In holding that the affidavit and 



304 Code of Civil Procedure. 

order of publication constitute no part of the judgment 
roll, we have already practically denied this doctrine 
80 far as they are concerned; but there are broader 
grounds or more fundamental reasons against it, which 
would be equally conclusive of the whole question were 
the affidavit and order for publication a part of the 
judgment roll. 

** The case of Coit vs. Haven, 30 Conn., p. 195, is 
directly in point. The service was constructive, as 
appeared from the return of the officer, the writ having 
been left at the house of defendant. The language of 
the judgment was: "This action came to the present 
term of this Court." In opposition to the record, the 
parties against whom it was presented, for the purpose 
of showing that the judgment was void, offered to prove, 
by the defendant in the judgment and others, that at 
the time when the copy of the writ was left in service by 
the officer, as claimed, at his usual place of abode, he 
was not an inhabitant ot tlio town, or any other place 
in the State, and that the writ never was, in any way, 
served upon him, and that at the time it was claimed 
to have been served he was residing out of the State. 
This testimony was r^ected. On appeal, after stating 
the general rule upon the subject, the Court said: 
'* But the counsel for the defendant urge the extreme 
hardship to which a party may be subjected if he may 
not deny and disprove the service of the writ, when he 
can clearly show that in fact no service was ever made 
on him, and that he never had notice of the suit in any 
form, and never heard judgment against him until it 
was made the ground of an action." They say, with 
great emphasis, and the argument is certainly a forci- 
ble one, can it bo that a Clerk of the Court may 
fabricate a record, or an officer make a false return of 
service, and there be no escape for one who is thus, by 
a judgment in^ the suit, made heavily indebted, or 
found guilty of a wrong, when, in fact, he is perfectly 
innocent, or never owed the debt, and could show it 
clearly if he had a chance? Will a Court, they ask, 
because it has a general jurisdiction, protect and give 
effect to such a fraud? It will not be claimed, and has 
not been on the argument, but that when a Court has 
jurisdiction its record speaks absolute verity, because 
it is the record of the Court's doings; and being a Court 
of final jurisdiction, there must be an end to the matter 
in dispute, if it be possible to reach that end at all; and 
it is so necessary that confidence should be reposed in 
Courts of a high character, as well as in the records of 
such Courts, that on the whole, and in view of all the 



Code of Civil Procedure. 806 

considerations affecting the subject, it is the only safe 
rule to give the decisions of Courts of general juris- 
diction full effect so long as they remain in force, 
rather than to leave them open to be attacked in every 
' way and on all occasions. Being domestic judgments, 
they can, if erroneous, be reviewed by proceedings 
instituted directly for the purpose, and reversed on 
error, or by a now trial; and if the danger is imminent 
and special, relief can be temporarily, if not finally, 
obtained by application to a Court of equity.    
Any other rule with regard to judgments of such 
Courts would be attended with very great embarrass- 
ments, and would be very dangerous in its general 
operation. 

** In discussing this point so fiir, we have assumed, as 
counsel for the respondents seem to have done, that 
constructive service is unknown to the common law. 
The precise mode provided by our statute may be, but 
it will certainly not be claimed, that there can be any 
distinction founded upon a mere difference in the mode 
by which constructive service is obtained. The only 
rational or plausible ground for any distinction lies 
between actual and constructive notice, and no notice. 
If there is any hardship in the rule, as defined by us, or 
any necessity for the distinction asserted by respond- 
ents, it grows out of a want of notice, for beyond or 
within a want of notice neither the charge of hardship 
nor the call of necessity can find a point upon which to 
rest. The idea, then, that a Court which undertakes to 
obtain jurisdiction of the person of a defendant by con- 
structive service of its process, is proceeding contrary 
to the principles upon which the course of the common 
law is based, is founded in a mistake, for constructive 
service is not, as the argument of counsel for respond- 
ents presupposes, a stranger to the course of the com- 
mon law^. In cases similar to those in which we resort 
to service by publication there has always been some 
mode by which jurisdiction has been obtained at com- 
mon law, amounting, or equivalent to, constructive 
service. In the Courts of common law, if the Sheriff 
cannot .find the defendant upon the first writ of capias^ 
there issues out an alias, etc. And if a non est inven" 
itut is returned upon all of them, then a writ of exigent 
or exigi facias may be sued out, which requires the 
Sheriff to cause the defendant to be proclaimed, re- 
quired, or exacted in five County Courts successively, 
to render himself; and if he does, then to take him as ^ 

in a capias; but if he does not appear, and is returned 



39 — ^VoL. I. 



806 Code of Civil Procedube. 

quinta exactus^ he shall then be outlawed by the Coro- 
ners of the county. — Bl. Com., Book 3, p. 283. 

" So, in chancery, * if the Sheriff returns that the de- 
fendant is n&ii etit inventus, then an attachment, with 
proclamation, issues, which, besides the ordinary form 
of attachment, directs the Sheriff that he cause public 
proclamation to bo made throughout the county to 
summon the defendant, upon his allegiance, personally 
to appear and to answer. If this be also returned with 
a non est inventus, and he still stands out in contempt, 
a commission of rebellion is awarded against him for , 
not obeying the King's proclamation, according to his 
allegiance, and four Commissioners therein named, or 
any of them, are ordered to attach him wheresoever he 
may be found in Great Britain, as a rebel and con- 
temner of the King's laws and Government, by refus- 
ing to attend his sovereign when thereunto required. 
*  * If upon the commission of rebellion a ncn 
est'^inventus is returned, the Court then sends a Ser- 
geant-at-Arms in quest of him, and if he eludes 
the search of the Sergeant also, then a sequestration 
issues to seize all his personal estate, and the profits of 
his real, and to detain them, subject to the order of the 
Court. * « * After an order for a sequestration 
issues, the plaintiff's bill is to be taken pro con/esso, 
and a decree to be made accordingly.' — Bl. Com., 
Book 3, p. 444. These modes of proceeding have been 
improved in England, as well as in the United States. 
The statute (5 Geo. II, Cliap. 26) provides that where 
the defendant cannot be found to be served with pro- 
cess of subpoena, and absconds (as is believed) to avoid 
being served therewith, a day shall be appointed him 
to appear to the bill of the plaintiff, which is to be in- 
serted in the London Gazette, read in the parish church 
where the defendant last lived, and fixed up at the 
Royal Exchange; and if the defendant doth not appear 
upon that day, the bill shall be taken pro con/easo, — 
Bl. Com., Book 3, p. 445. So, whatever meaning may 
be attached to the phrase * proceeding according to 
the course of the common law,' as used in the books, 
it cannot be understood to mean personal or actual 
service of process only. The affidavit of Dodge, under 
the rule in Steinbach vs. Leese, 37 Cal., p. 298, fails to 
state that he is the printer, foreman, or chief clerk of 
the Morning or Daily Globe, 'As to whether he was 
either, the record is, therefore, silent; and, in conform- 
ity with the rule already stated (if the remainder of 
the record was also silent upon that subject), we would 
be bound to presume that he was one or the other, or 



Code op Civil Procedure. SOT 

that legal proof to that effect was actually made. The 
fact that publication was made in tliat paper is one 
thing, and the relation of Dodge to the paper quite an- 
other. There is nothing in the statute which requires 
that the latter should have been proved by Dodge 
himself. It could have been proved by any other com- 
petent witness to whom the relation was known. But 
if otherwise, the result would be the same; for in either 
event, it must be presumed that the Court did its duty 
in the premises, and required proof of his relation to 
the paper. Upon the presentation of Dodge's affidavit 
the Court was bound to say: *It does not appear by 
this affidavit that the person by whom it was made is 
the proper person to make it; proof that he is must 
therefore be made before judgment can be rendered,' 
and it must be presumed that it is*o declared, and that 
the absent proof was supplied, either by Dodge himself 
or some other competent witness to whom the fact was 
known. But the remainder of the judgment roll in 
the case now under consideration is not silent upon the 
subject. The judgment itself states that service has 
been made * according to law and the order of the 
Judge of this Court.' In view of this direct statement 
as to a matter which the Court was as competent to de- 
termine as any other matter involved in the case, we 
would be bound to presume, as already shown, that 
proof of publication by the proper person was in fact 
made, notwithstanding that part of the roll denomi- 
nated * proof of service ' showed a state of facts from 
which a want of jurisdiction would be apparent. 

" There being no distinction in the respect under con- 
sideration, between cases of actual and constructive 
service, the case of Alderson vs. Bell is directly in 
point. That was an action of ejectment. The plaintiff 
was the purchaser of the premises at a Sheriff's sale, 
under a decree in a foreclosure case. He offered in 
evidence the judgment roll in the foreclosure case. 
The defendant demurred to the evidence upon the 
ground that a want of jurisdiction was apparent upon 
the face of the judgment roll. The only proof of 
service was what purported to be the written admis- 
sions of the defendants, stating time, but not place, 
unaccompanied b^* any proof of the genuineness of the 
signatures. The decree recited that the defendants 
had been regularly served with process, or had waived 
service by their admission. The Court (Mr. Justice 
Field) said: *It is well settled that Courts will take 
judicial notice of the signatures of their officers as 
such; but there is no rule which extends such notice to 



808 Code of Civil Procedure. 

the signature of the parties to a cause. When, there- 
fore, the proof of service of process consists of the 
written admissions of the defendants, such admissions, 
to he availahle in the action, should he accompanied 
with some evidence of the genuineness of the signatures 
of the parties. In the ahsence of such evidence the 
Court cannot notice them. In the foreclosure case, 
it is to he presumed that such evidence was Airnished 
to the Court hefore the judgment was rendered. The 
decree recites that the defendants had heen regularly 
served with process, or had waived service hy their 
acknowledgment. This is sufficient evidence that the 
requisite proof was produced to estahlish the genuine- 
ness of the signatures of the defendants to their admis- 
sion. Even if there were no such recitals in the decree, 
ana there was an entire ahsence of evidence in the 
record on the point, still the presumption would he in 
favor of the jurisdiction of the Court, and the regularity 
of its proceedings; and for the want of such evidence 
the decree cannot he impeached in this collateral 
action.'— 9 Cal., p. 321. 

** So in the case at har. The Court could not notice 
the affidavit of Dodge, in the ahsence of evidence that 
he was either the printer of the Globe, or foreman, or 
chief clerk, and it is to he presumed that such evidence 
was furnished to the Court hefore the judgment was 
rendered; and such would he the presumption if the 
record was silent. To the like effect is the case of Kipp 
vs. PuUerton, 4 Min, p. 473.*' 

See, also, as to jurisdiction of defendant hy service 
of summons and in support of the case of Hahn vs. 
Kelly, 34 Cal., p. 403, ahove cited, the following cases: 
Sharp vs. Brunnings, 35 Cal., p. 528; Quivey vs. Por- 
ter, 37 Cal., p. 458. 

2. Judgment cannot be attacked collater- 
ally ON DEFECTIVE RETURN. — If the retum is de- 
fective the defendant must appeal from the judgment. 
A mere irregularity of service is not sufficient to enahle 
him to attack the judgment collaterally. — Dorente vs. 
Sullivan, 7 Cal., p. 280; see Hahn vs. Kelly, 34 Cal., p. 
403 (Note No. 1 of this section); Peck vs. Strauss, 33 
Cal., p. 678. 

3. A Sheriff's Return is not traversable, 
and a Court will not permit it collaterally to he attacked, 
even if the officer is shown to have heen guilty of fraud 
and collusion.— Sewell on Sheriffs, p. 387; Watson on 
Sheriffs, p. 72; Egery vs. Buchanan, 5 Cal., p. 56. 

4. Service by Sheriff on officers of a Corpo- 
ration.— See Sec. 411, ante, Notes Nos. 1, 2, 3. 



Code op Civil Procbdukb. 809 

5. Presumption in rAVOR of Return when 

PLACE WHERE SERVED IS NOT STATED. — When tbo 

place where the writ was served is not stated in the 
return the Coprt should assume that it was served within 
the jurisdiction of the Sheriff to whom it was directed. 
Crane vs. Brannan, 3 Cal., p. 194; Pico vs. Sunol, 6 
Cal., p. 294. 

6. Return by Deputy to be made in name or 
Principal.— If a return is made by a deputy it must 
be made in the name of the Sheriff. — Joyce vs. Joyce, 
5 Cal., p. 449; Rowley vs. Howard, 23 Cal., p. 401; 
see Note to Sec. 410, ante. 

7. Affidavit of Service by person other than 
Sheriff or Deputy.— The affidavit of the person 
serving the summons must show all the facts which are 
required to make a valid service under the provisions 
of the four preceding sections. The facts necessary to 
show a valid service must appear affirmatively. — See 
McMillan vs. Reynolds, 11 Cal., p. 372; Dimick vs. 
Campbell, 31 Cal., p. 238; see, also, Peck vs. Strauss, 
33 Cal., p. 678. 

8. Proof of Service by Publication.— The pub- 
lication of summons may be proved by the affidavit of 
the Clerk, of the publisher of the paper, and the fact 
that the summons was dei>osited in a Post Office may 
also be proved by affidavit; nor is it necessary that the 
Constable (in Justice's Court) state in his return on tlie 
summons that such publication was made and such 
deposit made in the Post Office. — Seaver vs. Fitzgerald, 
23 Cal., p. 86. 

9. Affidavit op Publication by Printer.— An 
affidavit in the following terms, **H. F. W., prineipaC 
clerk in the office of the Uniorif" etc., "deposes and 
says that the notice," etc., was held insufficient. By the 
third subdivision of this section the fact that service 
has been made by publication is to be proved by the 
" affidavit of the printer^ his foreman^ or principal 
clerk." These are the only persons competent to testify 
on the subject. That the affiant was one of the three 
is itself a substantive fact, and must be proved as such 
before the Court in which the action is pending can 
render judgment against the parties to whom notice is 
Intended to be given. In the affidavit above given the 
affiant swears to nothing except as to the matters set 
forth after the word ** deposes." He names himself as 
principal clerk, but he does not swear that such was 
his position in fact. — Ex Parte Bank of Monroe, 7 Hill, 
p. 178; Cunningham vs. Goelet, 4 Denio, p. 71; Staples 
vs. Fairchild, 3 N. Y., p. 44; Payne vs. Young, 8 N. 




310 Code op Crnx Pkocedubb. 

Y., p. 158; see particularly, for correct form, 2 Bar- 
bour's Ch., p. 706; and Hill vs. Hoover, 5 Wise, p. 
370; Steinback vs. Loese, 27 Cal., p. 299. But it was 
held that if there is but Qpe clerk in a printing ofSce he 
need not be described in the affidavit of publication as 
''^pHncipal^^ clerk. — See Gray vs. Palmer, 9 Cal., p. 
616. And it was held that an objection that the affida- 
vit was made by a publisher and proprietor, and not 
• by the "printer, foreman, or principal clerk," was 

fully met by Bunce vs. Reed, 16 Barb., p. 347. It was 
held in that case that for the purposes of the question, 
printers and publishers might be considered synony- 
mous, the latter being within the spirit of the statute. 
Sharp vs. Daugney, 33 Cal., p. 513. And so, also, the 
affidavit of the '^^ proprietors^ of a printing office was 
held sufficient. Proprietor and printer are regarded as 
synonymous terms. — Quivey vs. Port«r, 37 Cal., p. 464. 
"Where the affidavit of the printer w^as to the effect that 
'publication had been made one month, but the judg- 
ment of the Court recites that it was published three 
months, the recital imparts absolute verity, and it must 
be presumed that some additional proof had been made 
to the Court before judgment. — Hahn vs. Kelly, 34 
. Cal., p. 403. 

10. Affidavit of Deposit of Summons in Post 
Office. — It is not a ground for objection to the affidavit 
that it does not state that the deposit was made in a 
United States Post Office, nor that there was commu- 
nication by mail between the place of deposit and the 
place to which the package was addressed. — Sharp vs. 
Daugney, 33 Cal., p. 514. And a copy of summons 
and complaint must be mailed to a minor under four- 
teen years of age. A failure to do so cannot be rectified 
by the appearance of the mother of the child on her 
own behalf.— Gray vs. Palmer, 9 Cal., p. 616. 

11. Admission of Service by Defendant.— An 
admission of service must be in writing, signed by the 
defendant; an oral admission will not be sufficient — 
Montgomery' vs. Tutt, 11 Cal., p. 307. The place of 
service need not be stated in the admission. The stat- 
ute docs not require an admission of service to desig- 
nate the place where the service was made. The object 
of such designation, when required, is to determine the 
period within which the answer must be filed, or when 
default may be taken. — Alderson vs. Bell and Wife, 9 
Cal., p. 321; Crane vs. Brannan, 3 Cal., p. 194. And 
generally, as to admissions of service, see Sharp vs. 
Brunnings, 35 Cal., p. 533; Crane vs. Brannan, 8 Cal.| 
p. 194. 



Code of Civil Procedure 



811 



12. EviDKNCE or GENriKEKEss OF Written Ad- 
missions OF Defendants — Proof of Signatures.— 
It is well settled that Courts will take judicial notice of 
the signatures of their officers, as such, but there is no 
rule which extends such notice to the signatures of par- 
ties to a cause. "When, therefore, the proof of service 
of process consists of the written admissions of defend- 
ants, such admissions, to be available in the action, 
should be accompanied with some evidence of the gen- 
mneness of the signatures of the parties. In the absence 
of such evidence, the Court cannot notice them. — 
Litchfield vs. Burwell, 5 Howard Pr. Rep., p. 346; 
Alderson vs. Bell, 9 Cal., p. 321. 

416. (§ 86.) From the time of the service of the wbeni«»^ 

\^ / isdiotion of 



summons and copy of complaint in a civil action, the 
Court is deemed to have acquired jurisdiction, and to 
have control of all the subsequent proceedings. The 
voluntary appearance of a defendant is equivalent to 
personal service of the summons upon him. 

Note.— 1. When the CorRT acquires Jurisdic- 
tion. — In order to give a Court jurisdiction of the sub- 
ject matter, so as to enable it to issue orders or process, 
it is necessary that the action should be commenced as 
prescribed by Sec. 405, ante. — Ex Parte Cohen, 6 Cal., 
p. 320. 

2. Appearance defined.— See Sec. 1014, post. 

3. Voluntary Appearance oe Defendant.— The 
only object of a summons is to bring a party into Court; 
and if that object be attained by the appearance and 
pleading of a party, there can bo no injury to him. — 
Smith vs. Curtis, 7 Cal., p. 587. And if no summons 
was issued, and yet the defendant appears, the Court 
by his appearance acquired jurisdiction. — Hayes vs. 
Shattuck, 21 Cal., p. 54. .A voluntary appearance is 
suflScient to confer jurisdiction. — See Mahlstadt vs. 
Blanc, 34 Cal., p. 577. 

• 4. Appearance by Attorney. — An appearance 

entered by attorney, whether authorized or not, was 
held a good and sufl5cient api)earance to bind the party, 
except in those cases where fraud has been used, or it is 
shown the attorney is unable to respond in damages. 
An appearance by attorney at common law, and by the 
express letter of our statute, amounts to an acknowl- 
edgment or waiver of service. — Suydam vs. Pitcher, 4 
Cal., p. 280. And the authority of an attorney to ap- 
pear is presumed. — Suydam vs. Pitcher, 4 Cal., p. 280; 



action 
acquired. 



I 



• *• 



812 



Code of Civil Procedure. 



y4^!u^ 



Hayes vs. Sbattuck, 21 Cal., p. 54; see, also, Carpen- 
tier vs. City of Oakland, 30 Cal., p. 439. 

5. Appearance by Attorney— Attorney has 
MANAGEMENT OF Case. — A party to an action may 
appear in his own proper person, or by attorney, but 
he cannot do both. If he appears by attorney he must 
be heard through him, and such attorney has the man- 
agement and control of the action.^Board of Commb- 
sioners vs. Younger, 29 Cal., p. 149. 

6. Appearance by mistake of Attorney. — 
"Where an attorney only authorized to appear for a 
few of several defendants inadvertently files an answer 
for all, and discovering the mistake obtains an order to 
withdraw his answer and file a new one limited to the 

« defendants for whom he intended to answer, the Court 
has jurisdiction only of those defendants for whom the 
attorney finally appears. — Forbes vs. Hyde, 31 Cal., p. 
346. 

7. Genuineness of Signature of Attornky of 
RECORD. — If the signature of the attorney of record, 
and that of an associate attorney is affixed to the plead- 
ings, the Court will not strike it out. The Court will 
not try the question, whether the signature of the attor- 
ney of record was genuine or put there by his associate 
without his authority. — Wilson vs. Cleaveland, 30 Cal., 
p. 200. 

8. Defendant served with Process but not 
given statutory time for Appearance.— In case 
that the defendant, although served with process, was 
not given the time allowed by statute to appear and 
answer, this would be good reason in the Court below 
to have quashed the writ upon motion by amictis curiCBf 
or for extension of time to appear and answer on motion 
of defendant; it would have been a good objection also 
on error, arrest of judgment, or motion for a new trial, 
but the defendant having been summoned to appear on 
a day certain, it cannot be said that the Court had no 
jurisdiction of the person, so as to render its judgment 
a nullity. — Whitwell vs. Barbier, 7 Cal., p. 64. 

9. Defendant must have been cited^to Appear 
BEFORE Judgment can be entered against him. — 
In suits in persofiam in Couits other than Admiralty 
Courts, no man can be deprived of hi^roperty with- 
out having been first personally cited to appear and 
make his defense, unless by virtue of some positive 
statutory enactment. — Loring vs. lUsley, 1 Cal., p. 29. 

10. Judgment cannot be sustained if Defend- 
ant WAS not Served and did not Appear.— See 
opinion in case of Hawkins vs. Abbott, 40 Cal., p. 640. 



^><^*:r2^ / /y A- 



s^s ^ 



CoDB OP Civil Procbdurb. 818 

TITLE VI. 

OP THE PLEADINGS IN CIVIL ACTIONS. 

Chapter I. The pleadings in general. 
n. The complainL 

III. Demurrer to the complainL 

IV. The answer. 

V. Demurrer to answer. 
VL Verificaiici/^ of pleadings. 
VII. General rules of pleading. 
VIII. Variance — mistakes in pleadings and 
amendments. 



OHAPTER I. 

. THB PLEADINOS IN GENERAL. 

Skctiok 420. Definition of pleadings. 

421. This Code prescribes the form and rules of pleadings. 

422. What pleadings are allowed. 

420. (§ 36.) The pleadings are the formal allega- Definition 
lions by the parties of their respective claims and inw. 
defenses, for the judgment of the Court. 

Note.— As to parties intervening, see Sec. 887, ante. 

421. (§ 37.) The forms of pleading in civil actions, This God* 
and the rules by which the sufficiency of the pleadings the form 
is to be determined, are those prescribed in this Code. pi«»din«fc 

Note. — Under the Code we have but one system of 
rules respecting pleadings, which govern all cases, both 
at law and in equity. — Bowen vs. Aubrey, 22 Cal., p. 
560; Payne vs. Treadwell, 16 Cal., p. 248; see, also. 
Easterly vs. Bassignano, 20 Cal., p. 489; Goodwin vs. 
Hammond, 18 Cal., p. 169; Riddle vs. Baker, 13 Cal., 
p. 802; Piercy vs. Sabin, 10 Cal., p. 27. 

422. (§ 38.) The only pleadings allowed on the 
part of the plaintiff are : 

40— Vol. I. ^ 



V 



314 



What 
pleadings 
are allowed 



Code of Civil Procbdurb. 

1. The complaint; 

2. The demurrer to the answer. 
And on the part of the defendant: 

1. The demurrer to the complaint; 

2. The answer. 

Note. — ^In their report to the Legislature the Com- 
missionere say: ** We have been urged to restore the 
' reply,' and the arguments, in &vor of its restoration 
are convincing. Were we making the law, instead of 
drafting a bill to be passed upon by the law-making 
power, we would feel no hesitation whatever as to our 
course. The ' reply * once formed a part of our system 
of pleading, and after a short trial it was abandoned. 
Were we to restore it, we would be met with this fiict 
as an objection. After careful consideration we have 
determined not to move in the premises. The * cross 
complaint' has been omitted, for we think it may be 
safely said that no member of the profession has ever 
found any use for it. Nothing can be brought into a 
case by 'cross complaint' that could not, under our 
system, be brought in by answer." 



CHAPTER n. 



THE COMPLAINT. 

Segtioit i25. Complaint, first pleading. 

426. Complaint, what to contain. 

427. What causes of action may be joined. 

Complaint, 425. The first pleading on the part of the plaintiff 
pleading, is the Complaint. 



Complaint, 
what to 
MBtain. 



426. (§ 39.) The complaint must contain: 

1. The title of the action, the name of the Cbnrt and 
county in which the action is brought, and the names 
of the parties to the action; • 

2. A statement of the fects constituting the cause of 
action, in ordinary and concise language; 

3. A demand of the relief which the plaititiff claims. 
If the recovery of money or damages be demanded, the 
amount thereof must be stated. 



C!oDB OF Civil Procedure. 315 

Note.— 1. General Rules of Pleading under 
THE Code.— The Ck)urt, in the case of Green vs. 
Palmer, 15 Cal., p. 414, lay down the following valua- H 
able rules to be observed in pleading: 

[We give the entire manual written by D. Dudley 
Field, from which the Court only makes certain ex- 
tracts. We have also inserted the title of cases and a 
digest of various decisions under the rules, which they 
are intended to explain. The rules generally, how- 
ever, are as given in Green vs. Palmer. — Ed.] 
' First Rule. — The Pleadings must be True^— 
That is to say, the pleader must set forth his case as he 
believes it. In this respect, pleadings under the Code 
differ much from pleadings at common law; for though 
it was sometimes said to be a rule of that law that the 
truth should be stated, yet it was equally a rule that 
certain fictions should be stated; which was much as if 
one should say, the pleadings must be true, except 
when required to be false. Thus the declarations in 
trover and ejectment were standing falsehoods; while 
the general issue in assumpsit, the statements under a 
videlicit, the usual averments of place, time, and 
amount, and many other allegations, were little better. 
When a lawyer wrote out a statement and put it on 
the flics of a Court, that his client was possessed of a 
ship, had casually lost it, and the defendant had found 
it, the truth being that his client had never had posses- 
sion, while the defendant had had the ship in his own 
hands from the time it was built; it is difficult to con- 
ceive of a man of education being reduced to a position 
more distasteful. Not a single purpose of pleading was 
subserved by such a statement. It did not apprise the 
defendant of the nature of the plaintiff's claim; it did 
not inform the Court or jury of that which they were 
to try; and it did not preserve a record of the point 
decided. When to such a statement the defendsnt 
pleaded the general issue, that plea being nearly uni- 
versal, it might truly be said that in no stage of the 
proceedings, before or at the trial, or when judgment 
was rendered, did the records of the Court contain any- 
thing from which one could gather the nature of the 
controversy. Every word of truth in the whole pro- 
ceeding was oral and unrecorded; everything which 
was written down was deceptive and false. So of an 
action of ejectment, under our revised statutes, even 
after the uncouth barbarisms of fictitious plaintiffs and 
casual ejectors had been abolished. The plaintiff was 
obliged to allege, falsely in most cases, that on some 
day after his title accrued ke was possessed of the 



816 Code of Civil Procedure. 

premises in question, and that the defendant afterwards 

entered into them, and unlawfully withheld th#tn from 

** the plaintiff. Tlie defendant pleaded that he was not 

guilty of unlawfully withholding the premises. These 
pleadings seem to have been framed on the modtsl of 
those in trover, and answered as little the true purpose 
of pleadings. Neither the parties, nor the Court, nor 
the jury, before the oral developments of the trial, 
could guess the claim or defense; and the recoid after- 
wards did not show what had been really decided. 

The usual averments in assault and battery were that 
the defendant assaulted and beat the plaintiff with 
sticks, stones, knives, etc., though the defendant bad 
but touched the plaintiff with the tip of his finger. If 
a note made at Singapore or Calcutta were brought to 
suit in a county in this State, the Court was innocently 
informed that Singapore or Calcutta lay in that county. 
These were some, and some only, of the antiuths 
which common law pleading required, recommended, 
1 or encouraged. "Under this Code, however, the rule is 

universal and inexorable that nothing whatever should 
be alleged which is not believed to be true; and the 
lawyer who inserts any statement, no matter how 
trivial, which he does not believe, violates that rule, 
and with it, his duty as an officer of the law. It has 
been argued, and sometimes adjudged, that the plain- 
tiff may still set forth his case in different counts, as 
they were called. But consider for a moment what 
those counts were. They were generally not different 
causes of action, but different forms of stating the 
same cause. Now, as there can be but one true s<tate- 
ment of one transaction, and as the Code requires the 
pleadings to be true, it !^hould seem to follow that differ- 
ent ways of stating the same claim are no longer permis- 
sible. They were never permitted in a bill in equity. 
If the plaintiff have different causes of action, he may, 
of course, and shotld, set them forth; but he should 
not set forth the same cause of action in different 
forms; and when he sets forth different causes, they 
should be called claims or causes of action, and not 
counts, because the term cou7it conveys a wrong ina- 
pression and tends to preserve a nomenclature, and, 
with the nomenclature, rules no longer in existence. 

Second Rule— Facts okly must be stated. — 
This means the physical facts cognizable by the senses 
or capable of being shown to a jury without the aid 
of legal inferences; the facts, as contradistinguished 
from the laWf from argurnent, firom I^mothesis, and 
from the evidence of the fkcts. A legal inference or con- 



CoDB OP Civil Pbocedukk. 



31Z 



elusion from the facts should not he stated; that is not 
the province of the pleadinji^ under our system, which 
is, to develop the facts. To apply the law to the facts — 
that is, to draw thence legal inferences or conclusions — 
is the province of the Court. — See Levinson vs. 
Schwartz, 22 Cal., p. 229; Payne vs. Treadwell, 6 
Cal., p. 310; Payne vs. Treadwell, 16 Cal., p. 248, 
overruling Goodwin vs. Stehbins, 2 Cal., p. 105. The 
words '* wrongful or unlawful," when conclusions of 
law.— See Pa5'ne vs. Treadwell, 16 Cal., p. 246. An 
averment that the plaintiff was tlie owner or holder of 
a note is not the averment of an issuable fact, it is but 
the averment of a conclusion of law. — Wedderspoon 
vs. Rogers, 32 Cal., p. 572; so, also, that a certain 
amount is due upon a note. — Frisch vs. Caler, 21 Cal., 
p. 71. An averment that a ** location was duly and 
properly made, according to the provisions of an 
Acty^* is a legal conclusion, the conditions of the Act, 
and the performance thereof, should be stated. — Peo- 
ple vs. Jackson et al., 24 Cal., p. 632. The promise to 
pay alleged in the common counts in assumpsit were 
merely conclusions of law. — Wilkins vs. Stidgers, 22 
Cal., p. 285. Where goods were sold on credit, a gen- 
eral averment in an answer that the '* term of credit 
has not expired *' is a conclusion of law. — Levinson vs. 
Schwartz, 22 Cal., p. 229. 

An averment "that any right that plaintiffs may 
have ever had to the possession,'' etc., they forfeited by 
a non-compliance with the rules, customs, and regula- 
tions of the miners of the diggings embracing the 
claims in dispute, prior to the defendant's entiy, is a 
statement of a conclusion of law. — ^Dutch Flat Co. vs. 
Moonoy, 12 Cal., p. 534. The averment in the com- 
plaint that the Ayuntamiento had full power and lawful 
authority to do the act in question is but an averment 
of a conclusion of law, and does not tender an issue of 
fact.— Branham vs. Mayor and Common Council of 
San Jos^, 24 Cal., p. 602. Argument in a pleading 
is equally inappropriate, for that is to be made orally 
before the Court, when the facts are developed. Hypo- 
thetical statements are improper, for the Court is to 
deal not with hypothetical cases, but with the facts 
of the case in hand.— Snow vs. Halstead, 1 Cal., p. 
361. The defendant's pretenses are equally improper, 
as they are not the facts of the plaintiff's case. The 
/(tcts must be carefully distinguished from the evi- 
dence of the facts. The latter pertains to the trial, 
and has no place in the pleadings. — Coryell vs. Cain, 
16 Cal., p. 567; Wilson vs. Cleaveland, 30 Cal.. p. 



318 Code of Civil Procedure. 

200; Larco vs. Casaneuava, 80 Cal., p. 565; Racouil- 
lai vs. Rone, 82 Cal., p. 455; Dupuy tb. Williams, 26 
Cal., p. 814. But inasmuch as the evidence is hut 
a series of facts, it has sometimes heen thought diffi- 
cult to distinguish between the greater facts which 
ought to be set forth in a pleading and those other and 
lesser facts which go to prove the former. There 
ought, however, to be no embarrassment on the part 
of any lawyer who has ever framed or who under- 
stands special verdicts. These have been long known, 
and the rule is as old as their existence, that they must 
contain the facts found and not the evidence to prove 
them. The essential facts must be stated directly, 
in unequivocal language, and not left to be inferred. 
The language of a pleading is construed most strongly 
against the pleader. — Campbell vs. Jones, 38 Cal., p. 
506; Moore vs. Besse, 30 Cal., p. 572; but see, also. Mar- 
shall vs. Shafter, 32 Cal., p. 191. Facts which are ma- 
terial should be stated in the pleadings by direct aver- 
ment, and not by inference. — Stringer vs. Davis, 30 Cal., 
p. 318. Allegations simply by way of recitals are insuffi- 
cient. — Stringer vs. Davis, 30 Cal., p. 318; Denver vs. 
Burton, 28 Cal., p. 549; Shafer vs. Bear River, 4 Cal., 
p. 294; see, particularly, Halleck vs. Mixer, 16 Cal., 
p. 577. The next rule, however, gives us a satisfactory 
test by which to distinguish the facts from the evidence. 
Third Rule. — Those Facts, and those only, 

MUST BE STATED WHICH CONSTITUTE THE CaUSE OF 

Action, the Defense, ok the Reply.— Therefore: 
First — Each party must allege every fact which he is 
required to prove, and will be precluded froin prov- 
ing any fact not alleged. For example, when a writ- 
ing is by the Statute of Frauds made necessary to the 
validity of a contract, the writing must be averred, that 
being one of the facts necessary to constitute a cause of 
action. The plaintiff, on his part, must allege all that 
he will have to prove to maintain his action ; the defend- 
ant, on his part, all that ho must prove to defeat the 
plaintiff, after the complaint is admitted or proved. — 
See, also, Jerome vs. Stebbins, 14 Cal., p. 458; Racouil- 
lat vs. Rene, 32 Cal., p. 455. Second — He must allege 
nothing affirmatively which he is not required to prove. 
This is sometimes put in the following form: that is to 
say, that those facts, and those only, should be stated 
which the party would be required to prove. But this 
is inaccurate, as negative allegations are frequently 
necessary, and they are not to be proved (Payne vs. 
Treadwell, 16 Cal., p. 243); as, for example, in an 
action on a promissory note, the plain tiff ^ust allege 






Code of Civil Procbdurb. 319 

not only the making of the note, but that it has not 
been paid. The rule, however, applies to all affirma^ 
tive allegations, and, thus applied, is universal. No 
matter what averments were held to be necessary in the 
former scheme of pleading, nothing of an affirmative 
character is now necessary beyond what the party must 
prove. For instance, it is enough to allege that the 
defendant published a libel of the plaintiff, without add- 
ing that he did it falsely or maliciously; the falsehood 
being presumed, and the malice being inferred from the 
falsehood. It must be recollected, then, in the first 
place, that every fact essential to the claim or defense 
should De stated. If this part of the rule be violated, 
the adverse party may demur. In the second place, 
that nothing should be stated which is not essential to 
the claim or defense, or, in other words, that none but 
issuaMe fcLds should be stated. If this part of .the 
rule be violated, the adverse party may move to strike 
out the unessential parts. — See Piercy vs. Sabin, 10 
Cal., p. 22. What is and what is not essential an 
uninstructed person might not readily discover, but a 
lawyer ought' not to be in doubt. 

An unessential, or, what is the same thing, an imma- 
terial allegation, is one which can be stricken from the 
pleading without leaving it insufficient, and, of course, 
need not be proved or disproved. — See Sec. 463, post. 
The following question will determine in every case 
whether an allegation be material : Can it be made the 
subject of a material issue? In other words, if it be 
denied, will the failure to prove it decide the cause in 
whole or in part? If it will not, then the fact alleged 
is not material; it is not one of those which constitute 
the cause of action, defense, or reply. To illustrate 
this let us suppose an ultimate fact, upon the establish- 
ment of which the claim or defense depends, and that 
the establishment of this fact depends upon the estab- 
lishment of three or four prior facts, which, being 
established, prove this. It is the ultimate fact, and 
not the prior or probative facts, which should be set 
forth. —Miles vs. McDermott, 31 Cal., p. 272; Grewell 
vs. Walden, 23 Gal., p. 169; see, also, Marshall vs. 
Shafler, 32 Cal., p. 103. As, for example, an action 
upon the covenants of a deed; the execution and deliv- 
ery of the deed are ultimate facts upon which the claim 
depends. When these come to be proved, it may 
appear, perhaps, that the deed was delivered first in 
escrow, till the performance of certain conditions by 
the grantee; that these were afterwards perfhrmed, and 
then the delivery became absolute. These, however, 



820 Code of Civil Procedure. 



are circumstances which, though they will appear in 
prooff should not be pleaded. Or take the case of an 
action for land, where the question is one of boundary. 
The point in issue is whether the defendant is in posses- 
sion of the plain tilTs land, that being affirmed by the 
plaintiff and denied by the defendant. It would be out 
of place for either party to insert in his pleading a cor- 
respondence respecting the dividing fence, or the acts 
of the parties toward a practical location, because, 
however important these might be in evidence, they 
might not determine the cause, since, if the correspond- 
ence or the practical location were disproved, the ques- 
tion of the true boundary, according to the deeds, 
would still remain. If, in an action for a libel, the 
defendant justifies, he must allege the truth of the 
charge, not the defendant's admissions tetiding to prove 
the truth, since the admissions might be disproved, and 
yet the charge be true. So, in nn action upon a mort- 
gage, if the defense be payment, the fcust of payment 
must be alleged, not the evidence of the plaintiff's 
admission that it had been paid, since there may 
have been no admission, but nevertheless a payment. 
It has been already said that some latitute is allow- 
able in respect to the number of facts to be stated, 
depending upon the relief sought. In an action to 
enforce a written agreement nothing behind the fact of 
the agreement need be alleged; while in an action to 
reform the instrument, the circumstances under which 
it was made may be most properly set forth. It re- 
sults, then, from what has been stated, under the 
present rule: first, that the pleader must insert in his 
pleading whatever he is to prove; secondly, that he 
must insert no affirmative allegation which he is not to 
prove; and thirdly, that what he does insert must be 
decisive of some part of the cause, one way or the 
other. In an action of ejectment to obtain a recovery 
the title of the plaintiff is the ultimate fact — ^the fact in 
issue. The facts going to support his alleged title are 
probative ikcts, which, if disputed by the defendant, 
are fkcts in controversy. — Marshall vs. Shafter, 32 
Cal., p. 198, and cases cited. Complaint should not y^>, 
state facts anticipating a defense. The only object to \ \ 
be gained by such pleading is to put the adverse party I 
tipon his oath without making him a witness, and the f 
effect of allowing this would be to establish a system of / 
discovery in conflict with the spirit of the statute.— 
Canfield vs. Tobias, 21 Cal., p. 851. It was held to be 
bad pleading to state in the complaint a dischai^ in 
insolvency, or a new promise. Nothing which oonsti- 



OoDB OF Civil Procedure. S21 

tutea matter of defense should be averred in the com- 
plaint. The former is a matter of defense, to be set up 
by the defendant; and the latter is a matter of replica- 
lion, eitlier by way of plea or evidence, as the system 
of pleading may be. — Smith vs. Richmond, 19 Cal., 
p. 483. 

Fourth Rule.— All Statements must be con- 
cisely MADE, AND WHEN ONCE MADE MUST NOT BE 

REPEATED. — At common law, as well as in chancery, 
the pleadings were the very opposite of concise. If 
there were lawyers who thought differently, they were 
swayed by peculiarities of taste or education. The t 

** terseness of the common law '* had as little to justify 
or recommend it ns those other abused phrases, ** the 
law is the perfection of reason,'* and the " wisdom of 
our ancestors.'* Even the forms with which we are 
most familiar, the traditional forms in daily use, appear 
to have been framed with an irresistible instinct 
towards the use of several words to express the mean- 
ing of one. If the declaration was for money lent, that 
was set forth as "money lent and advanced;" if for 
money paid, it was for money "paid, laid out, and 
expended;" if for money received, it was, "had and 
received;" as if, in each instance, one of these words 
did not express as much as all of them. There were 
really no concise pleadings at common law, excepting 
the fictitious ones. A declaration on the case, or in 
covenant, or in assumpsit on a policy of insurance, or 
other special agreement, was long, involved, and full 
of repetitions. The declarations in trover, (^ectment, 
and i-eplevin were short; but they were false, or dis- 
closed nothing. Every pleading that set forth the 
facts, set them forth wrapped in a cloud of words. A 
statute referred to was " the statute in such case made 
and provided." The spirit of redundancy went, indeed, 
beyond pleadings, and pervaded all writings which 
came from the hands of lawyers. Conveyances piled 
expression upon expression, till the sense was nearly 
lost sight of. Land was "given, granted, bargained, 
sold, aliened, remised, released, conveyed, and con- 
firmed," two or three times over in every deed. 
Statutes were overloaded, till the head grew weary 
with their endless involutions. Thus, also, such words 
as " duly," " wrongfully," and " unlawfully," so 
frequently used in pleading;:, might better be omitted. 
They tender no issue, and serve only to detract from 
that logical directness and simplicity of statemeni 



41-VoL. I. 



322 Code of Civil Procedure. 

• 

which oufifht always to he ohserved in a pleading.— 
Miles vs. McDermott, 31 Cal., p. 272; Halleck vs. 
Mixer, 16 Gal., p. 574. See as to surplusaji^e, Sees. 453 
to 465, post. 

There never was a greater slander upon the Code 
than to say that it permits long pleadings. On the 
contrary, it enjoins conciseness everywhere; and if in 
any pleading that was ever written under its rale there 
be an unnecessary word, it was put there in disregard 
of its provisions. Nor is it possible to frame or con- 
ceive of a system proceeding upon the idea of disclos- 
ing the facts of the case, which could require greater 
conciseness than is here' required. If pleadings are not 
to set forth the real claim and defense, they are useless, 
and had better be dispensed with. A summons to ap- 
pear before the Court and jury on a particular day, to 
try the rights of the parties on a particular subject, 
would be just as useful. But if a pleading is to bo a 
statement of the claim or defense, can the wit of man 
contrive to make it briefer than a concise statement of 
the facts? If an immaterial statement be inserted, or 
even an unnecessary word, the Courts have the power 
to strike it out. To avoid repetition, as well as to ob- 
tain conciseness, logical order is necessary. There are 
persons who are incapable of making a logical state- 
ment of anything, and such persons will be bad plead- 
ers under the Code. But a man of education, as every 
lawyer is supposed to be, ought to have no difficulty in 
setting forth any occurrence in its logical, which is its 
natural order. And if he does this, and sets forth only 
the facts on which his case hinges, and uses no more 
words than are necessary, we shall have brevity and 
substance, and hear no more of long pleadings, unneces- 
sary recitals, or immaterial averments. The foregoing 
are general rules, applicable alike to the complaint and 
answer. How successfully and rapidly they will de- 
velop the issues if they be strictly applied, is easily to 
be seen, since every allegation must be essential to some 
part of the claim or defense, and the denial of any one 
must be so far decisive of the case. At common law 
each plea was to be an answer to the tv^hole declaration; 
and as there might be as many pleas as one wished, 
eveiy material allegation might be successively denied. 
All this may be done under the Code in less time, with 
greater certainty, and in fewer words. The pleadings 
will be considered in the order in which they naturally 
occur, omitting, however, any observations respecting 
the demurrer. There is nothing in the frame of that 
which requires particular notice, further than to observ 



r 



•# 



CoDB OF Civil Procedure. 

that it does not perform an office so extensive as it per- 
formed in common law pleadings. There are many 
oyections formerly brought before the Court upon de- 
murrer, which are now brought before it upon a simple 
motion. 

The Complaint.— This is to contain: 

^ (1.) The Title.— Specifying the name of the Court 
m which the action is brought, the name of the county 
in which the plaintiff desires the trial to be had, and 
the names of the parties to the action— [i. c, all the 
partifti— plaintiff and defendant.] 



Court, 

County of , 

A, B, & C, D. 

agt. 

£, F, G, H, & J, £. 



323 



(2). The Statement.— A 
plain and concise statement of 
the facts constituting a cause 
of action, without unnecessary 
repetition. 



A. B., plaintiff, com- 
plains [or alleges], 

First- 
Second — 

Third— 

And so on ; or 
if there be more than 
one cause of action, 
which may be united 
under Sec. 427, post, 
thus: 

A. B., plaintiff, com- 
plains [or alleges], 

For a first cause ol 
action: 

First- 
Second — 

Third— 

For a second cause of 
action : 

First— 

Se(;ond — 

Third— 

And so on. 



There is an advantage in numbering the allegations^ 

as it tends to produce clearness of statement, logical 

order, and conciseness, and separates the allegations, 

leading to singleness of issues. 

Wherefore the plain- 
tiff demands judgment 
that ho recover of the 
defendant the sum of 
$ — , with interest from 

the day of , or 

judgment that the de- 
fendant execute and de- 
liver to the plaintiff a 
conveyance of, etc., and 
be also enjoined from, 
,etc. 

Some attorneys add: **And that the plaintiff may 

have such other relief as the case requires," copying 

the prayer for relief formerly used in chancery; but this 

is useless, since the Court must give such relief as the 



(3.) The Demand.— A de- 
mand of the relief to which 
the plaintiff supposes himself 
entitled. If the recovery of 
money be demanded, the 
amount thereof must be stated. 



324 Code of Civil Prockdure. 

case requires, whether demanded or not. — See Sec. 580. 
It is, befidefi, unauthorized. — See Rollins vs. Forbes. 
10 Cal., p. 299; Truebody vs. Jaoobson, 2 Cal., p. 269; 
People vs. Turner, 1 Cal., p. 152. Demand for treble 
damages must be expressly inserted. — See Chipman 
vs. Emeric, 5 Cal., p. 239. 

2. Object of Code to Narrow the Evidence 
ON Trial. — It was the intention of the Code to require 
the pleadings to be so framed as not only to apprise the 
parties of the facts to be proved by them respectively, 
but to narix)w the proofs on the trial. — Piercy vs. Sabin, 
10 Cal., p. 22. 

3. Complaint must contain Name of Court 
AND County where Action is brought. — So far 
as concerns the place of trial of civil actions, see Sees. 
392 to 400, inclusive. 

4. Complaint must contain Names of the 
Parties to the Action. — As to who are the proper 
parties to an action, see Sees. 308, and 367 to 389, in- 
clusive. 

5. Averment in Complaint which must be 
made to authorize Arrest of Defendant.— 
Porter vs. Herman, 8 Cal., p. 623; Ex Parte Cohen, 6 
Cal., p. 318; Davis vs. Robinson, 10 Cal., p. 411. 

6. Pleading in Actions to Recover the Pos- 
session of Real Property*. — It is usual to speak of 
the action to recover the possession of real property as 
an action of ejectment, and it is possible that with the 
technical designation it is sometimes thought that some 
of the technical allegations X'eculiar to the old form of 
the action are still necessary; but such is not the case. 
There is but one form of civil actions in this State, and 
all the forms of pleadings and the rules by which their 
sufficiency is to be determined are prescribed by the 
Code. The complaint must oontain **a sta};ement of 
the facts constituting the cause of action, ii^ ordinary 
and concise language,'' and it may be verified by the 
oatli of the party, in which case the answer must also 
be verified. The system in tliis State requires the &cts 
to be alleged as they exist, and repudiates all fictions; 
and only such facts need be alleged as are required to 
be proved, except to negative a possible pcrtbrmance of 
the obligation which is the basis of the action, or to 
negative an inference from an act which is in itself 
indififerent. Now, what facts must be proved to recover 
in ^ectment? These only: that the plaintiff is seized 
of the premises, or of some estate therein in fee, or for 
life, or for years, and that the defendant was m their 



CoDB OF Civil Procedure- 825 

posser-sion at the commencement of the action. The 
seizin is the fact to be alleg^ed. It is a pleadable and 
issuable fact, to 'be established by conveyances from a 
paramount source of title, or by evidence of prior pos- 
session. It is the ultimate fact upon which the claim 
to recover depends, and it is facts^of this character 
which must be allej^ed, and not the prior or probative 
facts which go to establish them. It is the ultimate 
facts — which could not be struck out of a pleading with- 
out leaving it insufficient — and not the evidence of those 
facts, which must be stated. It is sufficient, therefore, 
in a complaint in ejectment, for the plaintiff to aver in 
respect to his title, that he is seized of the premises, or 
of some estate therein in fee, or for life, or for years, 
according to the fact. The right to the possession fol- 
lows as a conclusion of law from the seizin, and need 
not be alleged. The possession of the defendant is of 
course a pleadable and issuable fact, and the only ques- 
tion of difficulty arises from the supposed necessity of 
negativing its possible rightful character. That nega- 
tive allegations, which are not required to be proved, 
may in some actions be necessary, may be admitted; 
but is there any such necessity as to the possession of 
the defendant in an action of ejectment? It seems to 
us that the substance of a complaint in ejectment under 
our practice is this: **A, owns certain real property, op 
some interest in it; tha defendant has obtained posses- 
sion of it, and withholds the possession from him." If 
the defendant's holding rests upon any existing right, 
he should be compelled to show it affirmatively in 
defense. The right of possession accompanies the 
ownership, and from the allegation of the fact of owner- 
ship — which is the allegation of seizin in *' ordinary 
language '' — the right of present possession is presumed 
as a matter of law. We do not think, therefore, any 
allegation beyond that of possession by the defendant 
is necessary, except that he withholds the possession 
from the plaintiff. The allegation that the possession 
is ** wrongful or unlawful " is not the statement of a 
fact, but of a conclusion of law. The words are mere 
surplusage, and, though they do not vitiate, they do no 
good. The withholding of the possession fW>m one who 
is seized of the premises is presumptively adverse to his 
right, and wronjg^ful. It is by force of this presumption 
that the plaintiff can rest, in the first instance, his case 
at the trial upon proof of his seizin, and of the posses- 
sion by the defendant. From these facts, when estab- 
lished, the law implies a right to the present possession 



326 Code of Civil Procedure. 

in the plaintiff, and a holding adverse to that right in 
the defendant. 

Where the plaintFff has heen in poseession of the 
premises fur which he sues, it will be sufficient for him 
to allege in his complaint such possession, and the en- 
try, ouster, and continued withholding by the defendant. 
Such allegations are proper when they correspond with 
the facts, but they are not essential, as is thought by 
many members of the bar. In this State, the posses- 
sion does not always accompany the l«^gal title. The 
statute authorizes a sale and conveyance of land held 
adversely by third persons; and the legal title is fre- 
quently held by parties who never had the possesion. 
In the Courts of New York— and it is well known 'that 
the Practice Code was taken principally from the Code of 
Procedure of that State — there was at one time some 
conflict of opinion as to what were sufficient allegations 
in a complaint in ejectment under the Code. It is now, 
however, settled by the Supreme Court of that State 
substantially in accordance with the views we have 
expressed. In Ensign vs. Sherman, 14 How. Prac, 
p. 439), the plaintiff averred in her complaint that she 
had lawful title, as the owner in fee simple, to the real 
estate in controversy, which was described; that the 
defendant was in possession of it, and unlawfully with- 
hold possession thereof from her; and, on demurrer, 
the complaint was held sufficient. Walter vs. Lock- 
wood, 23 Barb., p. 228. is to the same effect. In San- 
ders vs. Leavy, 16 How. Prac, p. 308, the complaint 
was similar to the complaint in the cases cited, and was 
demurred to on the ground that it did not state facts 
sufficient to constitute a cause of action; because, first, 
it did not allege that the plaintiff or his grantor was 
ever in possession; and second, it did not allege that 
' such possession was disturbed and they were evicted by 

the defendant, his grantors, or predecessors. And it 
was contended on the argument, as in the case at bar, 
that the allegations as to the plaintiff's title and the de- 
fendant's possession were not averments of &cts, but 
of conclusions of law; but the Court held the complaint 
sufficient, and gave judgment against the demurrer. 
** To recover real estate," said Mr. Justice Ingndiam 
in delivering the opinion, '* what is it necessary for the 
plaintiff to prove? Two things: first, that he Is the 
owner of the property; secondly, that the defendant 
withholds from him the possession without right. Both 
facts are plainly averred in the complaint.*' The desig* 
nation of the withholding of the possession by tha 
defendant, in the cases cited, as unlawful, is not con- 



Code of Civil Procedure. 327 

sidered as constituting any valid ground of objection. 
In Sanders vs. Leavy, the attention of the Court was , 
specially directed, in' the argument of counsel, to this 
mode of characterizing the act. For the reasons we 
have already stated, we consider it unnecessary to give 
it any character by special designation; for, being 
against one who is seized of the premises, it is presump- 
tively adverse and wrongful. To allege that it is 
unlawful is merely to state that which follows under 
the circumstances, as a conclusion of law from the act 
Jtself. 

The decisions of this Court in respect to the kieces- 
sary allegations of a complaint in ejectment have not 
been uniform, and perhaps on no one subject of plead- 
ing is there so much embarrassment felt by the profes- 
sion in consequence. In Gladwin et al. vs. Stebbins 
(reported as Goodwin et al. vs. Stebbins, in 2 Cal., p. 
105), the complaint averred that the plain tiJQTs were 
** lawfully entitled to the possession of the premises,'* 
and the Court held that the allegation was of a material 
fact, and therefore sufficient. In this respect we think 
the opinion cannot be sustained. The averment is 
clearly a mere statement of a conclusion of law. In 
Payne et al. vs. Tread well, 5 Cal., p. 810, the complaint 
alleged that the plaintiffs had ** lawful title as owners 
in fee simple of the premises," and '* that the defendant 
is in possession, and unlawfully withholds the same;" 
and on demurrer the Court held the complaint insuf- 
ficient. '^Notwithstanding," said Chief Justice Murray, 
in delivering the opinion, ** our statute has dispensed 
with the old form of pleading, and it is no longer 
necessary to allege a fictitious demise, etc., still, I 
apprehend that facts sufficient must be pleaded to show 
the plaintifiPs right to recover, and it will not do to 
state conclusions of law in place thereof. The allega- 
tion that the defendant is in pos.<(ession, and unlawfVilly 
withholds the premises, is insufficient; it is a conclusion 
of law drawn from the character of defendant's posses- 
sion, the circumstances of which should be stated." 
The decision, as is apparent, does not relate to the alle- 
gation as to the plaintifi*'s title, notwithstanding the 
general observations of the Chief Justice; it applies 
only to the allegation as to the withholding of the pos- 
session by the defendant. • So far as this was alleged to 
have been unlawful, the allegation was of a conclusion 
of law. But the giving of a certain character to the 
withholding, as unlawful, did not change the material 
fact that the possession was withheld; and this, as we 
have seen, taken in connection with the previous alle- 



T 



828 Code op Civil Procedure. 

gations of title in the plaintiff, and possession bvth^ 
defendant, was sufficient. A more particular statement 
of ** the circumstances " of the defendant's possession 
or withholding is not necessary under our system of 
practice. The decision in this respect has tended to 
produce inconvenience to practitioners, and prolixity in 
pleading, and we have no hesitation in overruling it. 
In Gregory vs. Haynes et al., 13 Cal., p. 591, it was 
held that the findings by the Court below — that one of 
the defendants, and not the plaintiff, was the owner, 
and entitled to the possession of the property in con- 
troversy, and that the defendants did not unlnwrully 
detain the same from the plaintiff— would not support 
the judgment, and the decision was based upon the 
ground that the ownership and right of possession were 
not facts, in the legal sense of that term, but con- 
clusions of law. We have had great doubt of the 
correctness of this decision ever since it was rendered; 
and upon the examination which we have given to the 
subject, in considering the case at bar, we are satisfied 
that we erred, and are glad we have an opportunity, 
at so early a day, of correcting our error. The fact 
was found that one of the defendants was the owner of 
the premises in controversy, and that fact alone waa 
sufficient to support the judgment against the plaintiff, 
nothing else having been found to qualify the right to 
the possession which accompanies the title. The bal- 
ance of the findings might have been treated as sur- 
plusage. The claim of the plaintiff having been thus 
disposed of, it was unnecessary to find as to the char- 
acter of the defendants' detention of the premises. 
In Boles vs. Wiefenback, 15 Cal., p. 144, and Boles 
vs. Cohen et al., 16 Cal., p. 150, the opinion states that 
the substantial averments of the complaint were only 
that the plaintiffs were the owners of the property in 
question, and that the defendant was in possession of it. 
It does not state that there was any averment that the 
possession was withheld from the plaintiff. If such 
averment were in fact made in the complaint, the 
decision cannot be sustained. — Payne & Dewey vs. 
Trcadwell, 16 Cal., p. 243; sec, also, Payne vs. Tread- 
well, 6 Cal., p. 810. When a complaint will be treated 
as a declaration in ^ectment. — See Ramirez vs. Mur- 
ray, 4 Cal., p. 293. It is better to simplify the plead- 
ings by allowing these general averments in actions of 
ejectment than to introduce the unnecessary confusion 
which long and complex statements of the facts must 
necessarily produce. A holding over by the plaintiff 
is in effect an ouster and may be so charged. If in 



Code of Civil Prooedurb. 829 

every case all the facts connected with the title and the 
wron/i^ul acts of the defendant be inserted in the com- 
plaint, the pleadings would be swollen to immoderate 
dimensions without benefit to the parties. — Garrison vs. 
^ampson, 15 Gal.^ p« 95. Residence of parties not to 
be alleged. — Doll vs. Fuller. Averment of title in 
general terms or specific deraignment of title — facts to 
be set out in latter case. — Castro vs* Richardson, 18 
Cal., p. 478. Title or possession to be stated. — Id; 
Steinback vs. Fitzpatrick, 12 Gal., p. 295; Salmon vs. 
Symonds, 24 Gal., p. 266; Marshall vs. Shafter, 82 
Gal., p. 176; Yount vs. Howell, 14 Gal., p. 465. 
Ouster, — ^An allegation of wrongftil withholding of 
possession has the same effect as an allegation of ouster. 
Marshall vs. Shafter, 32 Gal., p. 176. Oustei^Wrong- 
ful withholding of possession must be stated. — Id. 
•Rxaot time of ouster need not be alleged. — Gollier vs. 
Gorbett, 15 Gal., p. 183. When ouster is alleged to 
have taken place before title accrued to party ousted, 
it is a fiital defect. — See Goiyell vs. Gain, 16 Gal., p. 567. 
When prior possession is claimed, actual ouster must 
be alleged. — Watson vs. Zimmerman, 6 Gal., p. 46; 
see, also. Boles vs. Gohen, 15 Gal., p. 150. In the case 
of Goiyell vs. Gain, it was held, that under the facts in 
that case the complaint should only have alleged, that 
on some day designated, the plaintiffs were possesse4 
of the land, describing it; that while thus possessed the 
defendant entered upon the same and ousted them, and 
has ever since withheld the possession from them, to 
their damage — ^specifying such sum as might cover the 
value of the use and occupation from the date of the 
ouster. — Goryell vs. Gain, 16 Gal., p. 571. The mesne 
conveyances, through which title is derived, are mat- 
ters of evidence, and should not be stated at length in 
the complaint. — Id. A continued adverse holding 
must be alleged in complaint. — Steinback vs. Fitzpat- 
rick, 12 Gal*, p. 295. Unnecessary description and 
evidence of facts should be stricken from complaint. — 
Wilson vs. Gleaveland, 80 Gal., p. 192. In our prac- 
tice, to entitle the plaintiff in ejectment to recover, it is 
only necessary to establish his right of possession and 
the occupati(m of the defendant at that time. The 
date at. which plaintiff's right accrued or the defendant's 
occupation commenced, is material only with reference 
to the claim for mense profits.-r-See Yount vs. Howell, 
14 Galr, p. 465; Stark vs. Barrett, 15 Gal., p. 365. If 
action is for two separate pieces of land, the complaint 



42— Vol. I. 



•380 Code of Civil Procedukk. 

must set out each of the two causes of action separately, 
and each cause of action must affect all the parties to 
the action*, and not require trials to be held in different 
places. — Boles vs. Cohen, 15 Cal., p. 150. The com- 
plaint may ask, in addition to a recoQeiy of the prop- 
erty, an injunction, restraining the commission of tres- 
pass in the nature of waste, pending the iction. The 
grounds of equity interposition should be stated subse- 
quently to and distinct from those upon which the 
judgment at law is claimed. — Natoma Water and Min- 
ing Co. vs. Clarkin, 14 Cal., p. 544. A complaint that 
alleges he is in possession in one place, and in another 
avers that he is not, shows no cause of action. — Dickin- 
son vs. Maguire, 9 Cal., p. 46. A complaint in ^ect- 
ment, alleging title in plaintiff under a Sheriff's sale, 
made by one Sheriff, and a deed executed by his suc- 
cessor, was hold insufficient. — Alder^on vs. Bell and 
Wife, 9 Cal., p. 315. The allegation of the value 
of the use and occupation, rents, and profits of 
the premises, for the peiiod during w^hich defendants 
were in the wrongful possession and excluded the plain- 
tiff, is sufficient to charge defendants, without any aver- 
ment that they received such rents and profits. The 
terhis " rents and profits " are not here used in a techni- 
cal sense. The whole averment is in effect only that the 
value of the use of the premises, while plaintiffs were 
wrongfully excluded, was the amount stated. — Patter- 
son vs. Ely, 19 Cal., p. 40. As to actions of ejectment 
for mineral lands, as to what are necessary averments 
and sufficient pleadings, see Smith vs. Doe, 15 CaU, p. 
100. The complaint in an action for the recovery of 
the possession of real property is not required to be in 
any particular form— it must be controlled by the fiacts 
of the case which are sought to be put in issue. See 
the matter discussed in Caperton vs. Schmidt, 26 Cal., 
p. 490. 

7. Actions op Ejectment— What must be 
Ayerbed. — The law in respect to actions of ejectment 
has been materially modified by Sec. 379, ante; see 
cases there cited, and compare for sufficiency of plead- 
ings. There is no room for doubt, that whenever a 
landlord is entitled to bring an action under that Act 
against a tenant at sufferance, after having given the 
requisite notice to quit, etc., he may, instead of pro- 
ceeding under that Act, maintain an action of eject- 
ment. In such action it is not requisite that the com- 
plaint should state the tenancy, its termination, the 
notice, etc.; and when it appears from the pleadings 
that such tenancy existed, it will be presumed in sup- 



Code op Civil Procedure. 331 

port of the judgment in favor of the landlord that it 
waa proven on the trial that he*had taken the necessary 
steps to terminate the tenancy before the commence- 
ment of the action, and was then entitled to recover, 
unless the contrary is shown by a statement or a bill of 
exceptions. — McCarthy vs. Yale, 89 Gal., p. 585. 

Complaint in Ejjcctment. — Although it is thought 
by many that a style of pleading in the action of ^ect- 
ment which would show the right or title under which 
the plaintiff claims the possession, and the true position 
of the defendant, both in respect to the title and the 
possession, would be far preferable to the present sys- 
tem, and would enable the judgment roll to exhibit the 
issues which were tried and determined with more dis- 
tinctness and certainty, yet the present system has 
become so completely established that a change, if any 
is desirable, ought to come from the Legislature. The 
complaint in this case alleges the damages sustained 
by the entry and withholding of the possession by the 
defendant, and the value of the mesne profits; and we 
entertain no doubt that they are sufficient to support 
the j udgment. The j udgraent does not specify whether 
the sum of three hundred dollars was awarded for the 
damages of mesne profits, or for both; but the pre- 
sumption is that the judgment was sustained by the 
evidence; and whether that sum was awarded for one 
or both of those demands, the judgment is a bar to a . 
ftirther recovery for the same cause. — McCarthy vs. 
Yale, 39 Cal., p. 585; id., July Term, 1872. 

8. Action to Quiet Title to Land. — It has been 
held that complaint must aver that plaintiff was in pos- 
session. — See Pralus vs. Jefferson G. & S. M. Co., 34 
Cal., p. 558; Brooks vs. Calderwood, 34 Cal., p. 663. 
But not necessarily so under this Code. — See Sec. 738, 
post, and notes. 

9, Where Corporations are Plain jifys.— It 
must be al legend that the party plaintiff is a corporation 
incorporated under the laws of the State, etc. — See Cal. 
S. Nav. Co. vs. Wright, 6 Cal., p. 258; Cumberland 
College vs. Ish, 22 Cal., p. 641; see, however, 8. & L. 
Bank vs. Brown, 9 Abbott's Pr., p. 218; see, also, Con- 
necticut Bank vs. Smith, 9 Abbott's Pr., p. 168; see 
this case, also, as to foreign corporation requiring same 
allegation. It is unnecessary to specify the date and 
title of the Acts amending the Act incorporating the 
corporation. It is sufi^cient to designate the original 
Act of incorporation and refer generally to the other 
Acts amendatory thereof. — Sun Mut. Ins. Co. vs. 
Dwight, 1 Hilton, N. Y., p. 51. In a suit brought 



882 Code op Civil Procedure. 

by a corporation, or its assij^ee, upon an agreement 
with the corporation, no specific allegation of the incor- 
poration of the company is necessary. A statement of 
the name of the corporation, and of the making of the 
agreement between the defendant and the company, 
and of what the company did in fulfillment of the 
agreement, includes the idea of the legal existence of 
the company; and the fact of incorporation is mere 
evidence in support of it, not essential to be particu- 
larly stated in the pleading. — Norris vs. Stops, Hob., 
p. 211; Henriques vs. Dutch "West India Co., 2 Ld. 
Saym., p. 1536; President of U. S. Bank vs. Haskins, 
1 Johns., p. 132; Bennington Iron Co. vs. Rutherford, 
3 Har., N. J. R., pp. 105, 158; Harris vs. Musking- 
ham Co., 4 Blackf., p. 267; Richardson vs. St. Jos. 
Iron Co., 5 id., p. 146; Duchess Cotton Manufactur- 
ing Co. vs. Davis, 14 Johns., p. 239; Bank of Utica vs. 
Bmalley, 2 Cow., pp. 770, 778; Bank of Michigan vs. 
Williams, 5 Wend., pp. 478, 482; Kennedy vs. Colton, 
28 Barb., p. 59. 

10. Pleadings in Actions against Corpora- 
tions. — See preceding note; also, Cal. St. Nav. Co. vs. 
Wright, 6 Cal., p. 258; Lincoln vs. Colusa Co., 28 Cal., 
p. 662; and see note to Sec. 354, Civil Code, Subd. 2. 

11. Suits against Corporations, Municipal and 
OTHERS.— In an action against a municipal corpora- 
tion, the complaint set out the bond sued on; avers the 
defendant to be a corporation; that the corporation 
made and delivered the bond on good consideration, 
and this was done under an ordinance passed by the 
proper agents of the corporation, having authority for 
that purpose; and that th& defendant has failed to pay. 
Tliia is enough, prima ^facie, to show a liability on the 
part of the corporation. We see no more necessity for 
a plaintiff suing a corporation on a note or bond, to set 

, out the ordinance which empowered the corporate 

authorities to make the contract, than for a plaintiff, 
suing a principal on a note executed by attorney, to set 
out in the complaint the power of attorney. Nor is it 
necessary to set out the vote or other proceedings of the 
corporate agents, nor to give any further description of 
the agents than that given in the complaint. The 
bonds themselves are set out or minutely described, and 
these show by whom they were executed; and the per- 
sons signing them are averred to be the agents of , the 
corporation, duly empowered for that purpose. — Under- 
bill vs. Trustees of the City of Sonora, 17 Cal., p. 176. 
The complaint was held to not state facts sufi&cient to 
constitute a cause of action. Wbere Jthe allegation is 



CoDK ojf Civil Procedube. 983 

that the plaintiff, as a Justice of the Peace, performed 
service^, at the request of the District Attorney for that 
county, in cases wherein the people of the State were 
plaintiffs, to the amount of three thousand two hundred 
dollars, ** and that the defendant therehy became and 
is liable to pay the said sum," there is no allegation of 
the means by which the county became liable. It is 
not alleged that the services were rendered for or were 
procured by the county, or that the county received any 
benefit from their performance; nor is it stated that 
judgments were rendered in those cases, nor that the 
defendants in those actions have not paid, or were 
unable to pay, for the services. — ^Miner vs. Solano Ck)., 
26 Gal., p. 116. 

12. Actions by and against Counties. — CJoun- 
ties are quasi corporations, and have power to sue and 
be sued.— See Pol. Code, Sees. 4003 and 4076. The • 
right to sue a county is not limited to cases of tort, 
malfeasance, etc., but is given in every case of account. 
See, for decisions on former law. Price vs. Sacramento, 
6 Cal., p. 254; McCanu vs. Sierra, 7 Cal., p. 128. Under 
the law prior to adoption of Code, the claim must first 
have been presented to Supervisors and rejected; and 
it is probable that such continues to be the law under 
the Code. — See the sections of Political Code above 
cited, and also the cases cited in this note. 

13. Actions by and between Husband and 
"Wife. — Action for division of community property 
after decree of divorce ajrerments in complaint. — See 
Johnson vs. Johnson, 11 Cal., p. 200; Dye vs. Dye, 11 
Cal., p. 163. Action by wife to recover homestead 
granted away by husband alone. — Harper vs. Forbes, 
15 Cal., p. 202. Suit for distributive share of estate of 
alleged decea^d husband averment of existence of 
marriage.— Letters vs. Cady, 10 Cal., p. 588; People 
vs. Anderson, 26 Cal., p. 129. No * allegation of 
separate property is required in complaint in an action 
against the wife for her separate debt, for which she 
was liable in peraonam before coverture. — Bostic vs. 
Love, 16 Cal., p. 69. Allegation as to married woman 
being a sole trader. — Aiken vs. Ann Davis. 17 Cal., 
p. 119. 

14. Complaint fob reuev generally on the 
GROUND ov Fraud.— Facts constituting the fraud to 
be set out.— Kent vs. Snyder, 30 Cal., p. 666; Porter 
vs. Herman, 8 Cal., p. 628. The fraud is the substan- 
tial cause for -action, not the discovery thereof; and if 
the fraud occurred, before commencing action, more 
than the stated time within which actions may be 



384 Code oe Civil Procedure. 

brought, the cause of action is barred by the Statute 
of Limitations. — Carpentier vs. Oakland, 30 Cal., p. 
444; Sublette vs. Tinney, 9 Cal., p. 423; see, however, 
Boyd vs. Blankman, 29 Cal., p. 20. 

16. Action to Vacate Judgment on oKotrND of 
Fraud, etc.— See Ribend vs. Kieutz, 20 Cal., p. 109; 
Snow vs. Halstead, 1 Cal., p. 369; Castle vs. Bader, 23 
Cal., p. 75; Riddle vs. Baker, 13 CaK, p. 295; Meeker 
vs. Harris, 19 Cal., p. 278; Crane vs. Hirshfelder, 17 
Cal., p. 467. 

16. Action to cancel Conveyance cn the ground 
OF Fraud. — As to statement of particular facts and 
circumstances, which may be required toTshow, on the 
face of complaint, that the conveyance was fraudulently 
made. — See Kohner vs. Ashenaucr, 17 Cal., p. 578. 
Averment that grantee was a lictitious person, and that 
the conveyance was made to hinder and defraud 
creditors.— Purkitt vs. Polack, 17 Cal., p. 327. General 
averment of fraud as to conveyance, that it was to 
hinder and defraud creditors, etc. — See Harris vs. 
Taylor, 15 Cal., p. 348; also, Hager vs. Shindler, 29 
Cal., p. 47. The facts constituting the fraud must be 
definitely and specifically alleged. — Castle vs. Bader, 
23 Cal., p. 75; Snow vs. Halstead, 1 Cal., p. 359; Oak- 
land vs. Carpentier, 21 Cal., p. 642. So, also, to vacate 
a patent on the ground of its fraudulent procurement. — 
Scniple vs. Hagar, 27 Cal., p. 166. "Where a deed was 
deposited with third person, to be delivered to grantee, 
but grantor, subsequently directs third person not to 
deliver deed, it must be averred that third person has 
or is about to deliver such deed, or threatens so to do. — 
See Fitch vs. Bunch, 30 Cal., p. 208. Generally as to 
averments in complaint, in action. to set aside a convey- 
ance, on ground of fraud. — See cases above cited, and 
also, Watts vs. White, 13 Cal., p. 321; People vs. 
' Jackson, 24 Cal., p. 632; Hager vs. Shindler, 29 Cal., 
p. 47; Be Loon vs. Higuerra, 15 Cal., p. 483. 

17. Complaint to Set Aside Fraudulent Con- 
veyance. — In a suit for a fraudulent conveyance, it is 
not irrelevant or redundant to set out in detail the 
inceptive steps which culminated in the alleged fraudu- 
lent conveyance. — Perkins vs. Centre, 35 Cal., p. 714. 

18. Complaint to compel Rkconvetanck of on» 
OP two Tracts of Land granted by mistake.— 
In an action to compel reconveyance of one of two 
tracts of land described in the same deed, which it is 
averred was conveyed by mistake, the complaint must 
show clearly that a mistake was committed, or explain 
why the plaintiff included in the conveyance the second 



Code of Civil Procbdueb. • 885. 

tract, after having described the one intended to be 
conveyed.— Barfield vs. Price, 40 Cal., p. 536. 

19. What Allegations sufficient fob Injunc- 
tions.— See Bigelow vs. Grove, 7 Cal., p. 135; Tuol- 
umne W. Ck). vs. Chapman, 8 Cal., p. 892; Knowles 
vs. Inches, 12 Cal., p. 212; Henshaw vs. Clark et al., 
14 Cal., p. 460; Hicks vs. Michael, 15 Cal., p. 107; 
Head vs. Fordyce, 17 Cal., p. 149; Hicks vs. Comp- 
ton, 18 Cal., p. 206. If the complaint does not show 
that no adequate or complete remedy at law exists, 
then injunction cannot be granted. — Leach vs. Day, 27 
Cal., p. 645; Tomlinson vs. Rubio, 16 Cal., p. 202; De 
Witt vs. Hays, 2 Cal., p. 463. See, also, McCann vs. 
Sierra Co., 7 Cal., p. 121. See generally, for miscella- 
neous matters relating to sufficiency of averments, the 
aboVe cited cases, and also O'Connor vs. Corbitt, 8 Cal., 
p. 370; Hihn vs. Peck, 18 Cal., p. 640; Smith vs. Spai^ 
row, 18 Cal., p. 696; Coker vs. Simpson, 7 Cal., p. 340; 
More vs. Ord, 15 Cal., p. 204; McDonald vs. B. R. & 
A. W. & M. Co., 15 Cal., p. 145; Sanchez vs. Car- 
riaga, 31 Cal., p. 170; Logan vs. Hillegass, 16 Cal., p. 
200. An allegation simply of great and irreparable 
injury is insufficient; the facts stated must show the 
Court that the apprehension of such injury is well 
founded.— De Witt vs. Hays, 2 Cal., p. 463; Waldron 
vs. Marsh, 5 Cal., p. 119; Branch Turnpike Co. vs. 
Supervisors Tuba Co., 13 Cal., p. 100; Leach vs. Day, 
27 Cal., p. 643. 

20. Action to fobeclose Mobtoaoe, Liens, etc. 
Averments of ownership of note and mortgage. — Rol- 
lins vs. Forbes, 10 Cal., p. 299. Mortgage, stipulating 
for payment of counsel fees, not exceeding five percent 
of the amount due, see Carrierre vs. Minturn, 5 Cal., 
p. 435. A general averment, that a person who is 
joined as defendant with mortgagor has or claims to 
have some interest in the premises, sufficient. — See 
Anthony vs. Nye, 80 Cal., p. 401; see, generally, Yas- 
sault vs. Austin, 32 Cal., p. 597; Stringer vs. Davis, 30 
Cal., p. 318; Shafer vs. B. R. & A. W. & M. Co., 4 
Cal., p. 294; Hunt vs.'Waterman, 12 Cal., p. 301. 

21. Redemption of Mortgaoe. — No allegation of 
tender of amount due upon mortgage, previous to 
beginning action, need be made. — Daubenspick vs. 
Piatt, 22 CaJ., p. 330. 

22. More than one ground of Action stated 
IN Complaint—Action on Contract, etc.— It is 
necessary only for plaintiffs to state the fiicts of their 
case in ordinaiy and concise language, and if such facts 
showed that they had a right of action against the 



886 Code of Civil Procbdurb. 

defendants, it is clearly sufficient, even tfaoag:h it also 
showed that they had a right to recover upon two dif- 
ferent legal grouodfl. It may be (see facts of case) that 
the plaintifis paid the money to the defendants by mis- 
take, and also hold them liable as indorsers or guaran- 
tors. Either would constitute a good cause of action, 
and it does not make their complaint insufficient because 
they have two grouads of recovery instead of one. — 
Hills vs. Barney, 22 Cal., p. 247. ^ 

23. Action ok Coktract. — Complaint on contract, 
for purchase by defendant of certain goods, to *aver a 
readiness or oiler of deliveiy or performance. — Barron 
vs. Frink, 30 Cal., p. 486. 

24. Complaint on executory Contract.— In 
Durham vs. Mann, 4 Selden, p. 512, it was held, that 
in an executory contract for the s'ale of a quantity of 
iron, to be paid for on delivery within a certain period, 
the obligations of the one party to pay and the other to 
deliver were mutual and dependent; and that in an. 
action by the seller for the price, it was not enough 
simply to show the default of the purchaser, but that 
he must show he was ready or offered to deliver the 
property. That whichever party in such case seeks to 

* enforce the contract against the other must show per- 
formance, or a tender of performance, or a readiness to 
perform on his part; and that, until that is shown, he 
himself is in default. — Barron vs. Frink, 30 Cal., p. 
488. 

25. Averment of Damages in Complaint fob 
Breach of Contract. — In a suit to recover damages 
for breach of a contract, it is sufficient that the com- 
plaint alleges the contract, the breach complained of, 
and general damages. — Barber vs. Cazalis, 30 Cal., 
p. 96. 

26. Contract may be set forth in Complaint 
in the precise terms in which it is written, ob 
according to ITS LEGAL EFFECT. — ^A Contract may 
be declared on according to its legal effect, or in koBe 
verba. If the former mode should be adopted, then 
the defendant may, by the rule of the common law in 
a proper case, crave oyer of the instrument; and if it 
appear that its provisions have been misstated, he may 
set out the contract in hoc verba, and demur on the 
ground of the variance. But where the plaintiff sets 
forth the contract in the terms in which it is written 
and then proceeds by averment to put a fiftlse con- 
struction upon the terms, the allegations, as repugnant 
to the terms, should be regarded as surplusage to be 
struck out on motion.—l Ch. PL, p. 2S2; Stoddaxd vs. 



CoDB OP OiviL Procedure. 88T 

Trcadwell, 26 Cal., p. 300; see, also, Joseph vs. Holt, 
37 Cal., p. 250. And consideration need not be alleged 
for the contract if the contract be set out in complaint 
in the very terms in which it is written. — See McCarty 
Ts, Beach, 10 Cal., p. 461; Willis vs. Kempt, 17 Cal., 
p. 101; see Civil Code, Sees. 1614 and 1629. A 
written agpreement imports consideration, and seals are 
abolished. 

27. Complaint on Written Oontbact.— Joseph 
vs. Holt, 37 Cal., p. 260. 

28. What should be stated in Complaint in 
AN Action on a Contract. — The party to a written 
contract who has performed his part of it, can bring 
an action against the other party who has failed to ful- 
fill, for work and labor done and performed; but the 
execution of the contract, its terms, the performance 
of the same on the part of the plaintiff, and the non- 
performance by the other party, and the damages sus- 
tained, should be alleged, and if there has been vari- 
ation from the terms of the written contract in the 
progress of the work, by consent of the parties, that 
fiict should also be averred, and the performance of 
the contract as varied stated in the complaint. 
When, by the terms of the contract, the party who has 
failed to fulfill was to execute his note for the moAey 
due, his failure to do so should be averred, for the 
ground of action against him is his failure to execute 
the note.— O'Connor vs. Dingley, 26 Cal., p. 17; see, , 
also, for pleadings on contract, Kalkman vs. Baylis, 

23 Cal., p. 308. 

29. Assignment of Breach of Contract or 
Guarantee.— Dabovich vs. Emeric, 7 Cal., p. 109. 

80. Complaint where correction of Mistake 
IN Contract is sought.- If a material clause has 
been omitted by mistake in drawing up a contract, a 
party seeking to avail himself of the actual contract 
must obtain a reformation of the writing, by a distinct 
proceeding to reform it, or by specially pleading the 
mistake in the suit in which the contract is pleaded, 
and asking its correction as independent relief. Under 
a pleading which simply states the terms of a contract, 
the introduction of a written agreement respecting the 
subject matter cannot be followed by oral proof of a 
material clause alleged to have been omitted by mis- 
take from the writing.— Pierson vs. McCahill, 21 Cal., 
p. 122. 

81. Action upon an Assignment of Contract.— 

.1. 



388 CoDB OP Civil Procedure. 

If an action be brought on an assignment of a contract 
to one party by another, the pleadings should at least 
have alleged a positive transfer or assignment, and the 
character of it, so that the other party might be put 
upon notice of what he had to meet. — Steams vs. Mar- 
tin, 4 Cal., p. 229. 

32. Thb pebfobmance of Conditions Precedent 
MUST BE ALLEGED.— And if not alleged, the failure to 
do so must be taken advantage of by demurrer in. the 
lower Court. The defect cannot be shown after verdict 
rendered.— Happe vs. Stout, 2 Cal., p. 462. 

33. Waiver of Tort. — As to waiver of tort and 
maintenance of action upon other grounds, see Lubert 
vs. Chauviteau, 3 Cal., p. 458; Miller vs. Van Tassel, 
24 Cal., p. 463. But so, also, if the failure to comply 
with a contract is a tort, the party aggrieved may bring 
an action in tort, instead of an action upon the con- 
tract.— Sheldon vs. Str. U. S., 18 Cal., p. 526. 

34. Assumpsit— Waiver of Tort.— If personal 
property has been wrongfully taken the tort may be 
waived and an action in nature of assumpsit be main- 
tained for the recovery of the value of the property so 
taken.— Fratt vs. Clark, 12 Cal., p.^. 

35. Action of Trover. — See Pelfeerg vs. Gorham, 
23 Cal., p. 849; Nickerson vs. Cal. Stage Co., 10 Cal., 
p. 520. Conversion is the gist of the action of trover, 
and must be alleged. — Rogers vs. Huie, 2 Cal., p. 571. 

36. Complaint in Replevin.— Lazard vs. Wheeler, 
22 Cal., p. 139; Halleck vs. Mixer, 16 Cal., p. 574. 

37. Complaint in Actions to recover Propbrtt 
SEIZED BY Sheriff under Process.— See Sec. 688, 
post; see, also, Ghirardelli vs. Bourland, 32 Cal., p. 585; 
Kendall vs. Clark, 10 Cal., p. 17; Towdy vs. Ellis, 22 
Cal., p. 650; Killey vs. Scannell, 12 Cal., p. 73. 

38. Condition Precedent to be Alleged. — ^If 
the payment of a promissory note is agreed by the par- 
ties to be made conditional upon the payment by the 
payee of a certain debt of the payor, such payment is 
a condition precedent, and must be alleged in complaint 
to have been' made, or plaintifPs right of action on the 
note is demurrable. — Rogers vs. Cody, 8 Cal., p. S24. 

39. Complaints in Action for Purchase Monkt 
FOR Goods Sold and Delivered.- The sale and 
delivery of the goods to the defendant, the place and 
the manner in which the indebtedness accrued, and 
whether it was on account of defendant or another, 
must be alleged.— Mershow vs. Randall, 4 Cal., p, 824. 
Also, the amounts due severally for either goods or 
money.— Cordier vs. Scfiloss, 18 Cal., p. 576. It is a 



Code op Civil Pbocedurb. 889 

sufficient allegation which states that defendant is in- 
debted to plaintiff in a certain sum for goods sold and 
delivered to him at his request, and that defendant has 
never paid for them. — Abadie vs. Carrillo, 32 Cal., p. 
] 12. An allegation setting forth that plaintiffs had pur- 
chased ** a quantity of malt from P. & W., then and 
there acting as the agents of defendant,'' is only another 
form of declaring that they had purchased from the 
defendant. It is sufficiently certain to prevent any 
misapprehension of its meaning, and is no good cause 
for demurrer.— Cochran vs. Goodman, 3 Cal., p. 245. 

40. Factb which must be stats]> in Complaint 
IK SUCH Action. — The complaint contains several 
counts, which are in the ordinary form of counts in 
indebitatus assumpsit j. for goods sold and delivered'^ 
and money paid and expended; and it is objected to, 
not by demurrer, but after answer, as defective in not 
stating facts sufficient to constitute a cause of action. 
The objection is not well taken. The complaint is suffi- 
cient in its allegations, and if they were deemed too 
general, the defendant could have applied for and 
obtained an order upon the plaintiffs to furnish a bill of 
particulars. It states a promise by the defendant, and 
its consideration and breach. — Allen ys. Carpenter, 3 
Selden, p. 476; Buckner vs. Platner, 15 Barb., p. 560; 
Adam vs. Halley, 12 How. Pr., p. 326; Cudlipp vs. 
Whipple, 1 Abb., p. 107; Freeborn vs. Glazer, 10 Cal.* 
p. 388. 

41. Complaint in Action vor Moneys had and 

BECEIVED, LOANED OE PAID OUT, ETC.— If the actiOH 

is for money had and received to the use of the plaintiff, 
and the facts stated in the complaint show clearly that 
the defendants are in possession of money which, in 
equity and conscience, they are bound to pay over, it 
is not demurrable. — Kreutz vs. Livingston, 15 Cal., p. 
346. A demand must be alleged in the complaint. — 
Beina vs. Cross, 6 Cal., p. 31. Where the complaint 
shows the demand to be barred by the Statute of lim- 
itations, it is demurrable. — See Keller vs. Hicks, 22 
Cal., p. 457. Averments in action to recover money 
loaned. — See Lambert vs. Slade, 3 Cal., p. 830. And it 
was held that in an action to recover money laid out 
and expended for another's benefit the complaint stated 
a sufficient cause of action, which averred that defend- 
ant was justly indebted to plaintiff in the sum of three 
thousand doll%^, for money paid, laid out, and ex- 
pended for the use and benefit of defendant, and at his 
special instance and request, to wit: at, etc., and on 
the first day of April, 1857, and in the sum of three 



840 Ck)DB OP Civil Peocbdubb. 

thousand dollars, for money found to bo due from the 
defendant to plaintiff on an account then stated between 
them, and the defendant beinj2^ so indebted to the 
plaintiff, afterwards, to wit: on the day and year afore- 
said, at the place aforesaid, undertook and faithfully 
promised the plaintiff to pay the same, etc., and that 
said sum h due and unpaid. — DeWitt vs. Porter, 13 
Cal., p. 171. An averment in a complaint that defend- 
ant owes plaintiff a certain sum for professional ser- 
vices rendered at a certain time, at defendant's request, 
is sufficient, without alleging the value of the services, 
or defendant's promise to pay therefor. — Wilkins vs- 
Stidger^ 22 Cal., p. 235. 

42. Money had and receiyed.— A complaint for 
money had and received must allege a demand, or it is 

* demurrable. — Gi'eenfield vs. Steamer Gunnell, 6 Cal., 

p. 68. 

43. When tender of Purchase Money is to 
BE Averred.— In an action for non-delivery of pro- 
duce contracted for and to be delivered on demand and 
upon payment, it is not necessary to aver an actual 
tender; an averment that plaintiff was ready and will- 
ing to receive and pay for it was sufficient. — Pargona 
on Contracts, Vol. 1, p. 449; Crosby vs. Watkins, 12 
Cal., p. 88. 

44. When a Demand must be Averred. — An 
allegation that defendant sold to plaintiffs certain pro- 
duce, and after the sale executed a guaranty that the 
share of plaintiffs should be at their disposal, and stat- 
ing that a detnand for the same and the refusal of the 
defendant to deliver, is demurrable, as it should have 
contained an assignment of the breach of the contract 
or guaranty, for the material point at issue is, whether 
the defendant undertook to deliver. In this case the 
sale operated as a delivery. There was no necessity 
of a demand on defendant, unless for the purpose of 
enabling him to comply with his guaranty. — Dabovich 
vs. Emeric, 7 CaU, p. 212. 

45. Averment of a Refusal to Execute a Deed. 
It was held that the failure to aver refusal is fktal to 
tl^e action, and may be taken advantage of on the 
ground that the complaint does not state facts sufficient 
to constitute a cause of action. (See facts.)— Dodge 
vs« Clark, 17 Cal., p. 686. A refusal, or a breach of « 
contract, must be stated in direct, plain, and unequiv- 
ocal words. — Moore vs. Besse, 30 Cal., p. 570. 

46. When and how Papers and Becordb can 
BE MADE part OF THE PLEADING.— Records and 
papers cannot be made a part of a pleading by merely 



Code of Civil Procedure; 841 

referring to them, and prajring that they may be taken 
as a part of such pleading, without annexing the origi- 
nals or copies as exhibits, or incorporating them with 
it, so as to form a part of the record in the cause. — 
People vs. De la Guerra, 24 Cal., p. 78. In an action 
to foreclose a mortgage the complaint referred to a 
copy of the mortgiige annexed, and referred thereto for 
a correct description of the land, and this was held 
BufBcient for the purposes of ^he action. — See Emeric 
Ys. James, 6 Cal., p. 155. 

47. Complaints in Actionb to compel an Ac- 
count. — ^In an action to compel an account a complaint 
is sufficient to entitle plaintiff to a decree directing an 
account which alleges that plaintiff and defendants are 
parties in a company known as the "Miners* Ditch 
Company;" that defendants exclude plaintiff from 
participation in the business or benefit from it; that 
they have received large sums of money from the same, 
and refuse to account or pay him anything, etc. — Smith 
vs. Fagan, 17 Cal., p. 178. A request for and refusal 
to account must be alleged in tomplaint. — Bushness 
vs. McCauley, 7 Cal., p. 421. A complaint in an action 
for an account for rents and proceeds from the leasing 
and the sale of certain property containing an aver- 
ment in general terms that a copartnership exists as 
to the property between plaintiff and defendants, with- 
out averring any partnership agreement, and then states 
that plaintiff acquired his interest in the property by 
the purchase of an undivided interest from other per- 
sons than defendants, does not state facts sufficient 
either for a dissolution and settlement of the affairs of 
a partnership, or for a partition. — Bradley et al. vs. 
darkness, 26 Cal., p. 69. 

48. Complaint in Actions to Recover specitio 
Pebsonal Propebty. — Complaint will be held defec- 
tive if it appears that defendant came rightfully to the 
possession of the property, and no averment is made of 
demand and refusal to deliver the property. — Campbell 
vs. Jones, 38 Cal., p. 508. 

49. Demand and Refusal, how Pleaded.— An, 
averment that defendant " has failed, refused, and neg- 
lected so to return " the property sued for, is not an 
allegation of the special and formal demand and re^sal 
to deliver, required in actions to recover specific per- 
sonal property. — Campbell vs. Jones, 38 Cal., p. 508. 

50. Complaint in an Action eor Conspiracy. — 
Where two or more persons are sued for a wrong done, 
it may be necessary to prove a previous combination in 
order to secure a joint recovery; but it is never neces- 



h 



342 CJoDE OP Civil' Procedure. 

sary to allege it, and if alleged, it is not to be consid- 
ered as of the gist of the action. That lies in the 
wrongful and damaging act done. — Herron vs. Hughes 
et al., 25 Cal., p. 560. 

51. Plkadikqs in Actions roB Damages— What 
MUST BK Averred. — See Tuolumne Water Co. vs. 
Columbia and Stanislaus Water Co., 10 Cal., p. 193; 
Hoffman vs. Tuolumne Water Co., 10 Cal., p. 413; see, 
also, Ifanson vs; Webb, 3 Cal., p. 236. Grounds of 
damages to be specially averred. — Stevenson vs. Smith, 

• 28 Cal., p. 102. So also for loss of time, compensatio: 
for -wages paid, etc. — ^Dabovich & Co. vs. Emeric, 1 
Cal., p. 171. And if treble damages be given by stat- 
ute such must be stated, or statute recited in plead- 
ings. — Chipman vs. Emeric, 5 Cal., p. 239. 

52. Complaint in Action for Damages.— Thia 
case was for damages sustained by the plaintiff by rea- 
son of the refusal of the defendant, Sheriff of Siskiyou 
County, to execute to him a deed for land bought at 
public sale; but the complaint is fatally defective in 
this,^that it alleges special damages arising from the 
inability to get rents and profits from the estate — a tav- 
ern in Yreka — without averring that the defehdant in 
execution had any title to the premises, or that the 
plaintiff, if the Sheriff had made him a deed, would 

^ have been either entitled to receive or been able to re- 

cover possession of the property, or rents, or profits. — 
Knight vs. Fair, 12 Cal., p. 297. 

53. Complaint in Suit for Damages aoaikst 
Common Carrier. — It is unnecessary to state a tender 
of fare. An allegation of the plaintiff's readiness and 
willingness to pay the carrier the legal amout of fare Is 
sufficient.— Tarbell vs. C. P. R. R. Co., 34 Cal., p. 
622. 

54. Damages for Diversion of Water. — ^Mc- 
Donald vs. B. R. & A. W. & M. Co., 15 Cal., p. 145; 
Gale vs. Tuolumne Water Co., 14 Cal., p. 25; Leigh 
Co. vs. Ind. Ditch Co., 8 Cal., p. 323. 

55. Actions for Damage for Trespass. — The 
. words " with force and arms, broke and entered," do 

not confine the proof to the direct and immediate 
damages, in the same manner as in the old action of 
trespass, and the facts being clearly set out in the com- 
plaint, the addition of these words is surplusage. — 
Darst vs. Rush, 14 Cal., p. 81. Averment of posses- 
sion to sustain complaint for trespass. — McCairon vs. 
O'Connell, 7 Cal., p. 152. As to generally matters. — 
See Gates vs. Kieff, 7 Cal., p. 124. 

56. Damages for Infringement on Franchibx. 



> 



Code op Civil Procedure. 348 



In an action to recover damages, by the owner of a 
licensed ferry, against a party alleged to have run a 
ferry within the limits prohibited by law, it was held 
that the complaint should have alleged that defendant 
ran his ferry for a fee or reward, or the promise or ex- 
pectation of- it, or that he ran it for other than his own 
personal use or that of his family; and the omission of 
those allegations was fatal. — Hanson vs. Webb, 3 Oal., 
p. 237. 

57. Complaint ik Action op Account between 
CoTENANTsi — The complaint avers a tenancy in com- 
mon between the parties; the sole and exclusive pos- 
session of the premises by the defendant; the receipt 
by him of the rents, issues, and profits thereof; a de- 
mand by the plaintiff of an account of the same, and 
the payment of his share; the defendant's refusal; and 
r that the rents, issues, and profits amount to ^,000. 

These averments, and not the form in which the prayer 
for judgment is couched, must d.etermine the character 
of the pleading. The complaint is designated a bill in 
equity; but the designation does not make it such. 
There are no special circumstances alleged which with- 
• draw th« case from the ordinary remedies at law, and 
require the interposition of equity. The action is a 
common law action of account, and, viewed in this 
light, the complaint is fatally defective. It does not 
aver that the defendant occupied the premises upon 
any agreement with the plaintiff, as receiver or bailiff 
of his share of the rents and profits. It is essential to 
a recovery that this circumstance exists, and equally 
essential to the complaint that it be alleged. — Pico vs. 
Columbet, 12 Cal., p. 419. 

68. Suits for Divorce — "What must be Ayerrsd. 
In an action for divorce, on the ground of adultery, the 
charge should have been stated with reasonable cer- 
tainty as to time and place, so as to have enabled the 
defendant to prepare to meet it on the trial. — Conant 
vs. Conant, 10 Cal., p. 254. The information should 
extend to the particular place or locality where it 
occurred, though the name of the person with whom 
may be unknown .—Conant vs. Conant, 10 Cal., p. 
^ 254; see, also, Codd vs. Codd, 2 John. Ch., p. 224; 

Wood vs. Wood, 2 Paige, p. 113; Richards vs. Rich- 
ards, Wright's Ohio K., p. 302; id., p. 08; Stokes vs. 
Stokes, 1 Mo., p. 322; Wright vs. Wright, 3 Texas, p. 
168. Averment of residence in State for six months 
before applying for divorce. — Civil Code, Sec. 128; 
Bennett vs. Bennett, 28 Cal., p. 599; see, generally, 
Civil Code, Sees. 82 to 148, inclusive, and notes. 



1 



844 



Code op Civil Procedure. 

69. Complaint averring failitbe or iNSum- 
ciBNCT OP CoNMDKRATioN. — See Keller vs. Hicks, 22 
Cal., p. 457. But a.partial failure of consideration can- 
not be pleaded. — See Reese vs. Gordon, 19 Cal., p. 147. 

60. Actions on Notks, Bills op Exchanok, etc. 
Complaint upon promissory note should allege the non- 
payment thereof, not that a certain amount is due 
thereon.— Frisch vs. Caler, 21 Cal., p. 71; Brown vs. 
Orr, 29 Cal., p. 120. Where complaint stated that 
defendant made and delivered^ note to plaintiff, a fur- 
ther allegation that plaintiff *' is still the owner and 
holder of the note," is a conclusion of law. — See Wed- 
dcrspoon vs. Rogers, 32 Cal., p. 569. A complaint, 
which regards the maker and guarantor of a note as 
joint makers, and contains no allegation of demand and 
notice, is demurrable. — Lightstone vs. Laurencel, 4 
Cal., p. 227. In a suit against the maker of a note, or 
the acceptor iof a bill of exchange, w]iere the place of 
payment is fixed, an averment of presentment at that 
place, and refusal to pay, is unnecessary. — Montgomery 
vs. Tutt, 11 Cal., p. 307. No allegation of a promise 
in writing is required in a suit brought upon a promise 
made by the defendant to accept a draft which another 
might draw on him. — Wakefield vs. Greenhand, 29 
Cal., p. 597. An indor$er of a note, payable on demand, 
demand not being made until thirteen months after the 
indorsement to- plain tiff, is prima facie, not liable. The 
delay is unreasonable. In such case, facts to excuse 
the delay are an essential part of the complaint, and 
must be alleged. — Jerome vs. Stebbins, 14 Cal. p. 4o7. 
Where demand is barred, new promise to be alleged. — 
Smith vs. Richmond, 19 Cal., p. 476. 

61. Pleading Statute op Limitation— New 
Promise, etc. — See note to Sec. 312; see, also, particu- 
hirly. Sec. 458, post. 

62. Actions upon Undertakings. — Description of 
the bond in complaint. — Mills vs. Gleason, 21 Cal., p. 
274; Morgan vs. Thrift, 2 Cal., p. 562; Baker vs. 
Cornwall, 4 Cal., p. 15. Action ibr breach no notice 
to defendant need be averred. — People vs. Edwards, 9 
Cal., p. 286, Undertaking on appeal. — Tissot vs. Dar- 
ling, 9 Cal., p. 278. Bond for release of property 
attached.— Palmer vs. Melvin, 6 Cal., p. 6."1 ; McMil- 
lan vs. Dana, 18 Cal., p. 339 ; Williamson vs. Blattan, 
9 Cal., p. 500. Actions against sureties on injunction 
bonds.— Tarpey vs. Shillenberger, 10 Cal., p. 390; 
Lally vs. Wise, 28 Cal., p. 540. Recognizance under 
Penal Code.— People vs. Smith, 18 Cal., p. 408 ; Men- 
docino vs. Lamar, SO Cal., p. 627. Undertaking givea. 



OoBB OF Civil Procedure. 845 

in replevin suit. — Clary vs. Holland, 24 Cal., p. 147; 
Hills vs. GleasoD, 21 Cal., p. 274. 

J 

Actions ok Official Bonds. — Averments in com- 
plaint. — Mendocino Co. vs. Morris, 32 Cal., p. 145 ; 
Ghirardelli vs. Bourland, 32 Cal., p. 585 ; Van Pelt vs. 
Littler, 14 Cal., p. 194 ; Sacramento Co. vs. Bird, 81 
Cal., p. 66. 

63. Action for Collection of Taxes.— People 
vs. Pico, 20 Cal., p. 595 ; People vs. Holladay, 26 Cal., 
p. 300. 

64. Claims against Estates of Decedent's 
Executors and Apministratora.— The failure of 
plaintiff to aver in complaint, in an action upon a 
claim against an estate, its presentation to and r^ec- 
tion by the administrator, is an objection that is de- 
murrable on the ground that the complaint does not 
state facts sufficient to constitute a cause of action. — 
Ellissen vs. Halleck, 6 Cal., p. 393 ; Falkner vs. Fol- 
£om, id., p. 412 ; Hentsch vs. Porter, 10 id., p. 558 ; 
but these cases are overruled by Fallon vs. Butler, 21 
Cal., p. 24 ; and the correctness of the latter decision 
is questioned in Ellis vs. Polhemus, 27 Cal., p. 354. 
The case of Ellissen vs. Halleck, 6 Cal., p. 393, is 
referred to in the following cases : Falkner vs. Fol- 
som's Ex'trs, 6 Cal., p. 412 ; McCann vs. Sierra Co., 
7 Cal., p. 123 ; Williamson vs. Plattan, 9 Cal., p. 500 ; 
Piercy vs. Sabin, 10 Cal., p. 80 ; Willis vs. Farley, 24 
Cal., p. 498. 

65. Complaint by or against Executor, etc. — 
Complaint must allege that executor is entitled to sue 
in that capacity ; or if suit is against an administrator, 
the complaint must show that the party sued was ap- 
pointed and was acting in such capacity. — Barfield vs. 
Price, 40 Cal., p. 536. 

€6. Complaint against Absent Debtor.— If the 
plaintiff desire to subject the assets of an absent debtor 
to the payment of his claim, he must show that he is 
without a remedy at law; and if the complaint discloses 
such remedy at law, it will be dismissed upon demurrer. 
Lupton vs. Lupton, 3 Cal-i P- 120. 

67. Filing Supplemental Complaint.— It was 
held that it is no objection to a supplemental complaint 
that it prays for a different relief, and fails to bring in 
all the other creditors, who are alleged by the defense 
as entitled to a ratable distribution. (See facts.)— 
Baker vs. Bartol, 6 Cal., p. 483. 

68. Demand fob Relief.— See Sec. 580, post. The 



44 — Voir. I. 



846 Code of Civil Procedure. 

Court will grant such relief as the &ct6 stated in the 
complaint will justify. — People vs. Turner, 1 Cal., p. 
152; Truebody vs. Jacobson, 2 Cal., p. 269; Rollins vs. 
Forbes, 10 Cal., p. 299. A complaint in trespass may 
conclude with a demand for injunction. — Gates vs. 
Kieff, 7 Cal., p. 125. So, also, where action is brought 
to test priority of appropriation of water. — Marius vs. 
Bickncll, 10 Cal., p. 217. Demand for treble damages 
must be expressly inserted. How inserted, see Chip- 
man vs. Emeric, 5 Cal., p. 239. 

What 427. (§ 64.) The plaintiff may unite several causes 

•ansos of,, ,, _ n- 

Mtionmay^ 01 actiOD ID the same complaint, where they all anse 
out of: 

1. Contracts, express or implied; 

2. Claims to recover specific real property, with or 
without damages for the withholding thereof, or for 
waste committed thereon, and the rents and profits of 
the same; 

3. Claims to recover specific personal property, with 
or without damages for the withholding thereof; 

4. Claims against a trustee by virtue of a contract, 
or by operation of law; 

5. Injuries to character; 

6. Injuries to person; 

7. Injuries to property. 

The causes of action so united must all belong to 
one only of these classes, and must affect all the par- 
ties to the action, and not require different places of 
trial, and must be separately stated; but an action for 
malicious arrest and prosecution, or either of them, may 
be united with an action for either an injury to char- 
acter or to the person. 

Note.— 1. Contracts Express or Implied. — A 
cause of action against an indorser on the note, and a 
cause of action in equity to foreclose the mortgage, were 
held to be properly joined. — Eastman vs. Turman, 24 
Cal., p. 382. Mortgage assigned as security for debt due 
by mortgagee — ^assignee may unite his causes of ac- 
tion against mortgagor, mortgagee, and parties having 
liens or incumbrances on the property mortgaged, and 
make these persons aU parties. — Earwell vs. Jackson, 



Code op Civil Procedure. 847 

28 Cal., p. 107. Action* for foreclosure of mortgage 
made by husband and wife together to secure a note 
made only by husband, cause of action against husband 
for amount duo on note and interest, and also against 
husband and wife for foreclosure and sale of property, 
held to be properly united. — Rollins vs. Forbes, 10 Cal., 
p. 299. Legal and equitable claims, founded upon in- 
struments in writing, may be united. — Gray vs. Dough- 
erty, 25 Cal., p. 2(36. Cause of action for enforcement of 
trust, either express or implied, may be united with cause 
of action to enforce vendor's lien exie.ting without any 
written contract. Both of the claims being founded on 
trusts, one lying in contract and the other arising by act 
and operation of law.— Burt vs. Wilson, 28 Cal., p. 688. 
See, also, gonerall3', under this head, Keller vs. Hicks, 
22 Cal., p. 457; Weaver vs. Conger, 10 Cal., p. 233. 

2. Claims to Rkcover spkcific Real Property, 

"WITH OR WITHOUT DaMAOES, OR FOR WaSTE AND 

THE Rents or Profits.— Sullivan vs. Davis, 4 Cal., 
p. 291; Gale vs. Tuolumne Water Coi, 14 Cal., p. 25. 

3. Injuries to Property.— Moore vs. Massini, 32 
Cal., pp. 595, 590, Claims for value of the property 
destroyed, and for the damages caused by its destruc- 
tion, may be united.— Tendesen vs. Marshall, 3 Cal., 
p. 440. Uniting claim for injury and damages. — See 
Fraler vs. Sears Union W^ater Co., 12 Cal., p. 555. 

4. Causes of Action separately stated. — 
Though united in one complaint, the different causes 
of action muFt be Feparat^^ly stated. — McCarty vs. Fre- 
mont, 2ii Cal., p. 197; Buckingham vs. Waters, 14 
Cal., p. 14C; Cordier vs. Schloss, 18 Cal., p. 581. 
Ejectment may be for two distinct pieces of land, but 
the two causes of action must be separately stated, 
affect all the parties to the action, and not require 
different placet, of trial. — Boles vs. Cohen, 15 Cal., p. 
150. 

5. Generally. — \ complaint against a Sheriff and 
his sureties, averring trespass of Sheriff and against 
his sureties as signers of the bond, and not otherwise, 
the causes are not properly united. — Ghirardelli vs. 
Bourland, 32 Cal., p. 585. Claim for damages for per- 
sonal tort cannot hv. unit(?d with claim properly cogniz- 
able in Court of equity. — Mayo vs. Madden, 4 Cal., p. 
27. A claim for the possos>iion of real property, with 
damages for detention, cannot be joined in the same 
complaint, under any syst(?m of pleading, with a claim 
for consequential damages arising from a change of a 
road, by which a tavern keeper may have been injured 
in his business. — Bowles vs. Sacramento Turnpike Co., 



348 Code of Civil Procedure. 

5 Cal., p. 221. A claim for damages may be united 
with a demand for a stiitutory penalty, in an action 
against u Sheriff for failing to execute and return pro- 
cess. There is no neces.»ity for bringing two suits. — 
Pearkes vs. Freer, 9 Cal., p. 642. 



CHAPTER ni. 

DEMURRER TO THE COMPLAINT. 

Section 480. "When defendant may demur. 

431. Demurrer must t^pecify, etc. May be taken to part. 

May answer and demur at same time. 

432. What proceedings are to be had when complaint is 

amended. 

433. Objection not appearing on complaint, may be taken by 

answer. 

434. Objections, when deemed waived. 

When 430. (§ 40.) The defendant may demur to the 

defendant i • • i • i 

may demur com p J amt Within the time required in the sumraona 
to answer, when it appears upon /the face thereof 
either: 

1. That the Court has no jurisdiction of the person 
of the defendant or the subject of the action; or, 

2. That the plaintiff has not legal capacity to sue; 
or, 

8. That there is another action pending between the 
same parties for the same cause; or, 

4. That there is a defect or misjoinder of parties 
plaintiff or defendant; or, 

5. That several causes of action have been improp- 
erly united; or, 

6. That the complaint does not state facts sufficient 
to constitute a cause of action; or, 

7. That the complaint is ambiguous, unintelligible, 
or uncertain. 

Note.— 1. Court has no jurisdiction of the 
Person of Defendant or the subject of thx 
Action.— See "Willis vs. Farley, 24 Cal., p. 491; 
EUisen vs. Halleck, 6 Cal., p. 386. In Courts of gen- 



Code of Civil Procedure. 



849 



era! jurisdiction the want of jurisdiction must appear 
affirmatively on face of complaint, but such is not the 
case with Courts of special or limited jurisdiction, and 
in the hist named Court every fact necessary to ^ive 
jurisdiction must appear in the complaint. — Doll vs. 
Feller, 10 Cal., p. 432. 

2. Plaintiff has not leq^l capacity to Sue. — 
When p!aintiff has not legal capacity to sue because 
he is not a real party in interest. — White vs. Mary Ann, 
6 Cal., p. 402; Oliver vs. Walsh, 6 Cal., p. 456. 

8. Anothkr Action pkndin'o between samb 
Parti KS for kame cause. — Cunningham vs. Harris, 
5 Cal., p. 81; Nickorson vs. Cal. Stage Co., 10 Cal., p. 
520; Burnett vs. Kilbourne, 3 Cal., p. 327; Ayres vs. 
Benhley, 32 Cal., p. 620. The defense oT a prior lis 
pendens is available only where the plaintiff, at least, 
in both actions, is the same person. — Certain Logs of 
Mahogany, 2 Sumner, p. 593; Wadleigh vs. Veazie, S 
Sumner, p. 105; O'Connor vs. Blake, 29 Cal,, p. 314. 

4. Defkct or Misjoinder of Parties. — See Sec. 
434, post. Where a defect of parties is apparent upon 
the face of the complaint, the objection must be taken 
by demurrer, or the same will be waived. — Dunn vs. 
To/^er, 10 Cal., p. 170; Warner vs. Wilson, 4 Cal., 
p. 252; Andrews vs. Mokelumne Hill Co., 7 Cal., p. 
330; Alvarez vs. Brannan, 7 Cal., p. 503; Rowe vs. 
Ba'jigaluppi, 21 Cal., p. 635; Mott vs. Smith, 10 id., p. 
5.')7; Sampson vs. Shceffer, 3 id., p. 202; Beard vs. 
Knox, 5 id., p. 257; Tissot vs. Throckmorton, 6 id., p. 
473; MuKccne vs. McGarvey, 6 id., p. 498; Burroughs 
vri. Lott, 19 Cal., p. 125; Barber et al. vs. Reynolds, 33 
Cal., p. 497. In Summers vs. Farish, the Court seem 
to infer that a d«imurrer on the ground ** that the com- 
plaint does not state facti sufficient to constitute a causo 
of action," and which then specilies that the complaint 
ehows no joint causo of action in the plaintiff, and that 
it prays for a judgment in favor of three plaintiffs for 
an injury done to one, was a good demurrer for mis- 
joinder of parties; but this point was not expressly 
decid«^. — See Summers vs. Farish, 10 Cal., p. 350; 
hut see, also, Grain vs. Aldrich, 38 Cal., p. 521; 
Wilson vs. Castro, 31 Cal., pp. 427-431. Although 
the defendant does not demur for want of parties, it 
docs effect the power of the Court under the Code 
(Sec. 389, ante) from ordering other parties to be 
brought in, when such parties are necessary to a com- 
plete determination of the case. — Grain vs. Aldrich, 38 
Cal., p. 514. ' Complaint is not demurrable because the 
christian names of parties are not 8tat<«d. — Kelson vs. 



850 CoDB OF Civil Pbocedubb. 

Highland, 13 Cal., p. 74. The Court having overruled 
a demurrer made by defendants on the ground of a 
misjoinder of parties plaintiff, the plaintiffs then 
moved to amond the complaint by striking out the 
names of the plaintiffs thus averred to be improperly 
joined, and the defendants ^e^i^ted succe^Afully such 
motion. Such action on the t)ai-t of defendants whs 
held to be a waiver of the objection of misjoinder 
raised by their demurrer. — Summers vs. Farihh, 10 
Cal., p. 347; see Sees. 3C7-5i89, ante, and notes. 

5. Skvkral Causes of Action Impropi:kly 
United. — If not di-murred to, or the objection i« not 
made by answer, it is deemed waived. — Macondray vs. 
Simmons, 1 Cal., p. 393; Maiius vs. Bicknell, 10 Cal., 

* p. 224; Gates vs. Keiff, 7 Cal., p. 124; Jacks vs. Cooke, 
6 Cal., p. 164. A declaration which improperly joins 
an action of trespass qnare claufium fregit^ ejectment, 
and prayer for relief in chancery, is domurrable. — 
Bigelow vs. Grove, 7 Cal., p. 134. A demurrer lies to 
a complaint which a^ks for equitable relief if the law 
and equity are inseparably mixed together; but a de- 
murrer cannot be sustained on the ground merely that 
the complaint seeks a remedy at law and an equitable 
relief also. — See Gates vs. Keiff, 7 Cal., p. 125; Weaver 
vs. Conger, 10 Cal., p. 237; Kollins vs. Forbes, 10 Cal., 
p. SCO; Marius vs. Bicknell, 10 Cal., p. 224; but see, 
Bigelow vs. Grove, 7 Cal., p. 133, above cited. And 
as to uniting improperly several causes of action, see 
Kollins vs. Forbes, 10 Cal., p. 300; Gale vs. Tuolumne 
Water Co., 14 Cal., p. 28; People vs. Skidmore, 17 
Cal., p. 2C0; Garr vs. Kedman, 6 Cal., p. 574; see notes 
to Sec. 427, ante. 

6. When Complaint does not state Facts suf- 
ficient TO coNSTiTUtE Cause OK AcTioN.*— See notes 
to Sec. 426, ante. But this ground is confined to cases 
in which no cause of action at all is shown by the com- 
plaint. — Summers vs. Farish, 10 Cal., p. 347. And if 
complaint contain several causes oi action, and defend- 
ant demur to whole complaint, yet if one cause of action 
is good, although all others are bad, still the demurrer 
cannot be sustained. — Stoddard vs. Treadwell, 26 Cal., 
p. 294. It is provided that unless the demurrer shall 
distinctly specify the grounds upon which any of the 
objections to the complaint are taken, it shall be disre- 
garded; excepting, only, the objection to the jurisdic- 
tion of the Court; and the objection that the complaint 
does not state facts sufficient to constitute a cause of 
action. — See Sees. 431 and 434, post. Sees. 431 and 434, 
post, are to be read in conjunction. To give effect to the 



Code of Civil Procedurb. 



351 



former, without regard to the excepted objections speci- 
fied in the latter, would be to abrogate an important 
provision of the statute. This we have no right to do, 
and hence (say the Court): "We hold the objection 
taken by demurrer to the complaint, that it does not 
state facts sufficient to constitute a cause of action, to 
be well and sufficiently assigned in the language of the 
statute.'' — Kent vs, Snyder, 30 Cal., p. 672; see, also, 
Williamson vs. Blattan, 9 Cal., p. 501. A defect suffi- 
cient to defeat the present right of plaintiff, in whole or 
in part, may bo shown as a ground of demurrer. — 
Uentsch vs. Porter, 10 Cal., p. 555. If the complaint 
states a condition precedent, does not show perform- 
ance, the defect must be taken advantage of by de- 
murrer in the Court below. It is too late to take 
advantage of such defect after verdict. — Happe vs. 
Stout, 2 Cal., p. 460. So, also, a similar rule prevails 
as to an omission to aver delivery in a suit on a bond. — 
Garcia vs. Salerusteguie, 4 Cal., p. 244. A complaint 
disclosing the fact that the subject had been litigated in 
a former suit between the same parties, and that in such 
action the plaintiff in this action had set up the same 
equity which he claims by this complaint, the com- 
plaint was held bad on demurrer, and was ordered to 
be dismissed. — Barnett vs. Kilboume, 3 Cal., p. 327. 
Action brought prematurely, before any injury had 
occurred, demurrable on ground that complaint does 
not state facts sufficient to constitute cause of action. 
(See facts). — Harvey vs. Chilton, 11 Cal., p. 114. An 
action upon an undertaking to release property ft-om an 
attachment. The complaint did not aver that the prop- 
erty attached was released upon the delivery of the 
undertaking, and it was held that in this respect it was 
defective, and could be taken advantage of by demur- 
rer, on the ground that complaint did not state facts 
sufficient to constitute a cause of action without further 
specification. — Williamson vs. Blattan, 9 Cal., p. 501; 
referring to Palmer vs. Melvin, 6 Cal., p. 651; Haire 
vs. Baker, I'Selden, p. 867; Johnson vs. Wetmore, 12 
Barbour, p. 433; Ellisscn vs. Halleck, 6 Cal., p. 886. 
Objections to the demand for relief in complaint cannot 
be made by demurrer. — Rollins vs. Forbes, 10 Cal., p. 
299. 

7. Whkn the Complaint is ambiguous, unin- 
TKLLIQIBLR, OR* UNCERTAIN. — The demurrer should 
specify in what the uncertainty or ambiguity consists. 
Blanc vs. Klumpke, 29 Cal., p. 156; see, also, Powell 
vs. Boss, 4 Cal., p. 197. For general matters, seo 
Brown vs. Martin, 25 Cal., p. 88; Mendocino vs. Mor- 



jB62 Code of Civil Procedure. 

ris, 32 Cal., p. 146; People vs. Love, 25 Cal., p. 526. 
If complaint unites two causae of action improperly, 
or is unintelligible, ambiguous, or uncertain, these 
objections must be taken by demurrer or they are 
waived. ^Lawrence vs. Montgomery, 37 Cal., p. 183. 

8. DeMURBEBS to whole COMPLAmT KOT GOOD 
WHERE BOME OF THE CAUSES OF ACTION ARE SUFFI- 
CIENT. — If, where several causes of action are alleged, 
there are facts stated sufficient to sustain any one of the 
causes, a demurrer to the whole complaint cannot be 
sustained.— Stoddard vs. Treadwell, 26 Cal., p. 294; 
Barber vs. Cazalis, 80 Cal., p. 92; Whiting vs. Heslep, 
4 Cal., p. 327; Weaver vs. Conger, 10 Cal., p. 233; 
Young vs. Fierson, 1 Cal., p. 448. Even if demurrer 
is good as to part of a complaint (though not to all of 
it), but is made to the whole, then it cannot be sus- 
tained.— People vs. Morrill, 26 Cal., p. 360. 

9. Demurrer when Demand appears to be 

BARRED BY STATUTE OF LIMITATIONS.— Statute should 

be distinctly stated in demurrer. — Brown vs. Martin, 
25 Cal., p. 89; Farwell vs. Jackson, 28 Cal., p. 106. It 
was formerly doubted whether a defendant in equity 
could, by demurrer, make the objection that the remedy 
was barred by lapse of time, or whether he must not 
resort to his plea (answer); but it now seems to be 
settled that if it appears upon the face of the eom^ 
plaint that the suit is barred by lapse of time the de- 
fendant may demur. — Humbert vs. Sector of Trinity 
Church, 7 Paige, p. 197; Sublette vs. Tinney; SmiUi 
vs. Richmond, 19 Cal., p. 476. But the bar must 
clearly appear in order to sustain demurrer. — Ord vs. 
Do la Guerra, 18 Cal., p. 67; Smith vs. Richmond, 19 
Cal., p. 476; Barringer vs. Warden, 12 Cal., p. 811; 
Grattan vs. Wiggins, 23 Cal., p. 16. 

10. What is Admitted by Debturrer. — ^A de- 
murrer admits the truth of such facts as are issuable 
and well pleaded; but it does not admit the conclusions 
which counsel may choose to draw therefrom, although 
they may be stated in the complaint. It is to the sound- 
ness of those conclusions, whether stated in the com- 
plaint or not, that a demurrer is directed, and to which 
it applies the proper test. — Branham vs. Mayor et al. 
San Jos^, 24 Cal., p. 602; Tuolumne Water Co. vs. 
Chapman, 8 Cal., p. 392. 

11. General Matters.— The office of a demurrer 
is to raise issues of law, and, therefore, it should not 
state fads, — Cook vs. De la Guerra, 24 Cal., p. 289. 
Courts take no notice of mere defects in form where 
the demurrer is general.— Phelps vs. Owens, 11 Cal., 



Ck)DB OF Civil Procedurb.' 853 

p. 22; Ottero vs. Bui lard, 3 Gal., p. 188. Demurrer to 
Qnes$:ential parts of complaint. — Green vs. Palmer, 15 
Cal., p. 411. Demurrer must come within one of the 
seven grounds allowed by this Code. — Hentsch vs. 
Porter, 10 Cal., p. 555. Objections to prayer of com- 
plaint cannot be made by demurrer. — Rollins vs. 
Forbes, 10 Cal., p. 299. If demurrer is overruled, and 
defendant answers, such answer is a waiver of the 
demurrer. — De Broom vs. Priestly, 1 Cal., p. 206. 

431, (§§ 41, 42.) The demurrer must distinctly Demurrer 
.- , ™"*t 

specify the grounds upon which any of the objections specify, etc. 

to the complaint are taken. Unless it-do so it may be 

disregarded. It may be taken to the whole complaint May be 



or to any of the causes of action stated therein, or the j«^ 
defendant may demur and answer at the same time. Se^u^a?** 



ay 
isw 
imi] 
same time. 



Note. — 1. Dkmurrer must distinctly specify 
GROUNDS OF OBJECTION .—See note No. 6 to Sec. 430, 
ante; also, Kent vs. Snyder, 30 Cal., p. 666. 

2. Waiver of Demurrer.— An answer put in sub- 
sequently to a demurrer, is a waiver of the demurrer. 
De Boom vs. Priestly, 1 Cal., p. 206; Pierce vs. Min- 
tum, 1 Cal., p. 470; Brooks vs. Minturn, 1 Cal., p. 481. 

3. May Demur and Answer at the same time. 
People vs. MoClellan, 31 Cal., p. 103. 

4. Demurrer should be filed as a separate 
Pleading.— See Brooks vs. Douglass, 32 Cal., p. 208. 

432. (§ 43.) If the complaint is amended, a copy What pro- 
of the amendments must be filed, or the Court may, ar© to be 

' •'' had when 

in its discretion, require the complaint, as amended, fg^'^^IJij^ 

to be filed, and a copy of the amendments to be served 

upon the defendants aflfected thereby. The defendant 

must answer the complaint, as amended, Avithin such 

time as the Court may direct, and judgment by default 

may be entered upon failure to answer, as in other 

cases. 

Note. — ^It is the universal practice in this State to 
answer amended complaints within the same time after 
service of a copy as in the case of a service of a sum- 
mons with a copy of the orij^inal complaint, and the 
Court seldom fixes any specific time for answering in 
such cases. The Court has, undoubtedly, the power to 

45— Vol. I. 



354 



Ol^oction 
not appear- 
ingon 
complaint, 
may bo 
taken by 
answor. 



Olvections, 
when 
doomed 
iraivcd. 



Code of Civil Procedure. 

fix the time, but where no time is fixed the answer must 
be made within the same time as is allowed in case of 
service of copy of original complaint with summons. — 
People vs. Ruins, 23 Cal., p. 130. If the complaint is 
amended and defendant asks an order permitting his 
answer on file to stand as the answer to the amended 
complaint, the answer is to be treated as if filed when 
the order was made. — Mulfoid vs. Estudillo, 32 Calf, 
p. 131. If the time allowed to answer is until the plain- 
tiff shall select on which count of the complaint he will 
go to trial, the plaintiff is required to serve a copy of 
complaint with notice of his election. — "Wilson vs. 
Cleaveland, 30 Cal., p. 192. As to amended com- 
plaint, see, ali^o, Nevada Co. & Sac. Canal Co. vs. 
Kidd, 28 Cal., p. 673. 

433. (§ 44.) When any of the matters enumerated 
in Section 430 do not appear upon the face of the com- 
phiint, the objection may be taken by answer. 

Note. — If tlio defect docs not appear upon the face 
of the complaint the objection may be taken by answer, 
and where the defendant did not know that too many 
parties were joined as plaintiffs until the same was made 
apparent in evidence, he should be allowed leave to 
amend his answer during the trial. — Gil lam vs. Sig- 
man, 29 Cal., p. 637. 

434. (§ 45.) If no objection be taken, either by 
demurrer or answer, the defendant must be deemed to 
have waived the same, excepting only the objection to 
the jurisdiction of the Court, and the objection that 
the complaint does not state facts sufficient to consti- 
tute a cause of action. 

Note. — See Note No. 6 to Sec. 430, ante. 



CHAPTER IV. 



THE ANSWER. 

Section 437. Answer, what to contain. 

438. "When counter claim may be set up. 

439. When defendant omits to set up counter claim. 

440. Counter claim not barred by death or assignment. 



Code of Civil Procedure. 865 

Skction 441. Answer may contain several grounds of defense. De- 
fendant may answer part and demur to part of com- 
plaint. 

437. The answer of the defendant shall contain: 

1. If the Com])laint be verified, a specific denial to An.'\Tor, 
each allegation of the complaint controverted by the contain. 
defendant, or a denial thereof according to his infor- 
mation and belief. If tha complaint be not verified, 

then a general denial to each of said allegations; but 
a general denial only puts in issue the material allega- 
tions of the complaint; 

2. A statement of any new matter in avoidance, or 
constituting a defense or counter claim. 

Note.— 1. Answer to contain what— Gknkkal 
Rules— The Answer. — This is to contain: 




A general denial asserts in h single sentence that 
every allegation of the complaint is untrue. When a 
complaint is false in every one of its allegations, the 
defendant may, if he chooses, group them together, 
instead of denying each allegation in its turn, and may 
thus make tlie denial general, so as to cover nil the 
allegations at once. But this is far from being equiva- 
lent to the general issue in common law pleadings; fiir 
that, besides denying all the plaintiff's allegations, 
denied also that he had any cause of action, even if his 
allegations weie true, and thus enabled the defendant 
not only to adduce evidence in disproof of the plaintiff's 
case, but generally in discharge of it, if not disproved. 

A specific denial singles out specific allegations, and 
denies them. All allegations not denied arc, for the 
purposes of the action, taken as true. An express ad- 
mission is, therefore, improper. In equity pleadings, 
under the former system, express admissions were 
proper, and often necessary; but in this respect, as in 
others, there is a wide difference between that system 
and the one established by the Code. 

A denial murt be of the substance of the allegation, 
not of its form. When, therefore, as is sometimes the 
case, a defendant denies that an allegation is true in 
manner and fomn as stated^ or denies that he did what 
is charged against him at the time and place stated, he 
puts himself upon the form of the statement rather 



^ 



I 



> 



366 Code of Civil Procedure. 

than upon its substance, nnd fails to make that denial 
which the law requires. His answer is, then, what is 
sometiniea called a negative pregnant; that is, a denial 
whose truth was consifc^tent with the truth of every ma- 
terial part of the allegation denied. 

A denial need not be in the very language of the alle- 
gation denied, though that is the best mode, when it can 
be done with truth. Sometimes it is necessary to make 
what may be called a partial denial; as, for example, 
when the complaint professes to give the substance of 
an agreement, which the defendant does not admit to 
be correctly given, he may answer that the only agree- 
ment made on the subject was as follows, and then it 
set forth, 

(2.) A STATE- ( in avoidance or constituting a defense 
M KNT OF N K w -j or countev claim^ i n ordinary and oon- 
MATTER ( cise language, without repetition. 

All the defenses must be kept distinct. Each of them 
should begin with some expression to indicate that it is 
a new defense, thus: arid /or a further defense^ the 
defendant answers or alleges^ etc. (See Gates vs. 
Kieff, 7 Cal., p. 125.) Every defense, legal and equita- 
ble, may be interposed. 

A counter claim is a cross demand — a claim of the 
defendant against the plaintiff counter to the claim of 
the plaintiff against the defendant. It is more exten- 
sive than set-off— the latter being confined to money 
claims, and those of a particular description : while the 
former extends notonly to money claims, but to recoup- 
ment and to equitable defenses, when affirmative relief 
is sought on the part of the defendant. The main design 
is, as far as possible, to dispose of the whole controversy 
between the parties in one action, avoiding thus the 
multiplication of suits, and bringing the whole of a 
transaction, or a connected series of transactions, into 
one view, to be judged as a whole. 

The counter claim must show a cause of action in 
favor of a defendant and against a plaintiff, between 
whom a several judgment might be had in the action. 
If, for example, the claim and defense be, as they gen- 
erally are, such that the plaintiff might recover against 
one of several defendants, that defendant may, on his 
part, assert his counter claim against Uie plaintiff. 

The cause of action set forth in the counter claim 
must arise either out of the contract or transaction set 
forth in the complaint as the foundation of the plaintiff^s 
claim, as in case of independent covenants in a deed; 
or it must be connected with the subject of the action, 
' as in case of an assault upon the defendant by the 



Code of Civil Pkocedurb. 



85T 



plaintiff which led to the violence charpjed in the com- 
plaint; or if the action itself be on contract, then any 
other cause of action, arining al^oon contract and exist- 
ing at the commencen\ent of the action, may be the 
ground of a counter claim. 

In the answer, as well as in the complaint, it is desir- 
able to break the mutter into distinct paragraphs, and 
to number them. 

"When, therefore, a complaint is brought to an attor- 
ney, and ho is to prepare an answer, his first question 
of his client should be: " Is any part of this complaint 
false?'* and if it be so, that part must be specified and 
denied; he f^hould next inquire if there be any defense 
which would discharge the defendant if the complaint 
were proved to be true; and, lajrtly, he should learn if 
there be a counter claim which will avail his client. 
The different defenses naturally present themselves in 

the following order: 

rkcnSai /General, 
denial, | ypecitic. r Total, 

I Partial. 

Defenses in discharge, 
f Set-off. 
Recoupment. 
Other claim of defendant on same 

contract or tran.«actiun. 
Other claim of defendant connected 

with the subject of action. 
Money claim on separate contract 

agamst money claim on contract. 
Equitable defense, with a claim of 

affirmative relief. 

The true design of pleading is sometimes misappre- 
hended. It is not to exercise the art of lawyers, but to 
obtain justice for clients; and in furtherance of that 
design, it seeks to ascertain and record the facts of the 
controversy. To ascertain the facts it is necessary that 
each party make his own statement of them, and when 
the points of disagreement are ascertained, evidence is 
called in. There are persons who prefer oral pleading 
at the trial. Others prefer oral pleading in the pres- 
ence of a Judge, preparatory to the trial; and of that 
opinion are some distinguished lawyers in England. 
The arguments for it are, that it is simpler, quicker, 
and more certain. The majority, however, are in favor 
of written pleadings exchanged between the parties 
before the trial. They reason thus: If there were but 
two parties, and those near the Judge, oral pleading 
might be preferable; but when the parties are numer- 
ous, or distant, the inconvenience of bringing them all 
before the Judge at the same time, to make their 
respective statements and counter statements, would be 



CouNTiEK Claim. 



^58 Code op Civil Procedure. 

hardly tolerable. Therefore, they would neither call in 
the jury nor bring the parties before the Judge, till they 
had Interchanged with each other written statements of 
the fact<?, and a.<certained the points of difference. In 
what manner to order these written statements, so that 
they shall most surely and most easily evolve the points 
of difference, is the problem of pleading. How this 
problem is solved with us, is submitted to the judgment 
of those who reason for themselves. 

The common law sought by its peculiar scheme of 
written altercations, to bring out the precise points in 
dispute, and in doing so, instituted an intricate and toil- 
some process, which wearied the attoniey and the 
suitor, and failed to attain the end at last. And even 
if it had been true, as its friends claimed for it, that this 
scheme was entirely successful in the production of sin- 
gle and close issues, that would not have decided the 
question of retaining it. For it could not have been 
maintained in any respect, without upholding the dis- 
tinction between legal and equitable proceedings, nor 
could it have been maintained in its integrity without 
I'etaining the forms of action. They greatly err, who 
conceive that they can abolish the forms of action, and 
yet preserve, as a whole, that mass of regulations, sub- 
tilties, and conceits, which formed what was styled the 
system of pleading at common law. Some of the rules 
might perhaps have been preserved, when the forms of 
pleading were abolished; but greater inconvenience and 
confusion would have resulted from an attempt to 
modify the system for the purpose of adapting it to a 
single form of action, than from its entire reconstruc- 
tion. Whatever was useful in the old systems of com- 
mon law or equity was of course ready for use in the 
new; but the old had to be taken down, and a new one 
reconstructed, if any permanent good was to be accom- 
plished. These may be regarded as legal axioms; first, 
that no scheme of procedure can last which does not 
provide for the adjudication of the whole of a contro- 
versy, be it partly legal and partly equitable, in one 
action; secondly, that neither the common law ptead- 
ings nor the equity pleadings subserved that purpose 
and attained that end; and, therefore, thirdlj', that a 
now system was indispensable, selecting what was good 
in each, and adding what seemed to be necessary to 
make a consistent whole. It certainly would be agree- 
able to know that in obtaining the beneiHs of a new and 
dniform system, we did not lose a single advantage of 
either of the old. Let us see whether such be not the 
fact. In the first place, there were under the old sys- 



Code of Civil Procedure. 



359 



torn, in the greater number of the cases, no recU issues 
whatever; the issues were nominal in all cases of gen- 
eral pleading, as has been already explained. So far, 
certainly, the advantage is greatly on the side of the 
Code. In the next place, the advantage in respect to 
that smaller number of cases where the pleading was 
special, is also on the side of the Code. "What produces 
an issue? An allegation denied. Under the Code the 
defendant must deny or discharge himself; and if he 
discharge himself, his allegations in discharge are 
denied by force of the law. Here there is no general 
pleading till you get beyond the answer, and then for 
the first time you meet the general issue — a statutory 
general issue. The defenses by discharge are few in 
comparison with defenses by denial, not more probably 
than as one to ten. And if the affirmations and denials 
are stated with ordinary skill, they constitute issues as 
simple and precise as it is possible to put in words. It 
is only when the pleader is ignorant of his art that they 
are otherwise. If a pleading contain involved state- 
ments, or immaterial averments, lay it not to the 
account of the law which is violated, but to him who 
disregards it. The remedy is with the Courts, If he 
who assumes to act as attorney, bo so faulty in his 
mind or education, as to be unable to make a plain and 
logical statement, or to contradict one with precision, 
the Court can rectify the pleading, and punish him. 
They are also vested with the power to make general 
rules for the purpose of carrying the Code into full 
effect. If they find pleaders still inattentive, let them 
establish as a positive rule what is now the dictate of 
convenience, and require the allegations to be sepa- 
rated, to be confined each to a single point, and to be 
numbered. If issues as single and as narrow as it is 
possible to produce, are not thus secured, it is not possi- 
ble to secure them by any schemes of legislation or any 
rules of Court. 

2. Difference between effect of general and 
SPECIAL Denial. — A denial, whether general or 
special, only puts in issue the allegations of the com- 
plaint. The difiference between a general and special 
denial in this respect is only in the extent to which the 
allegations are traversed. — Coles vs. Soulsby, 21 Cal., 
p. 47. 

3. General Denial. — In an action for malicious 
prosecution, the defendants filed a general denial, and 
also averred that they had nothing to do with the pros- 
ecution, except as witnesses, plaintiff filed a replication 
taking issue on this averment. If plaintiff regarded 



360 



Code of Civil Procedure. 



this as a good defense and joined issue on it, defendants 
cannot complain; thouj^h, probably, the matter was put 
in issue by the general denial, and the replication was 
unnecessary. — Dreux vd. Domec, 18 Cal., p. 83; White 
vs. Moses, II Cal., p. 69; Brooke vs. Chilton, 6 Cal., 
p. 640. 

4. Qualified General Denial.— A general de- 
nial of the averments of a verified complaint, with tho 
qualifying words, "except as hereinafter admitted," 
does not put in issue any of its allegations. — Lewinson 
vs. Schwartz, 22 Cal., p. 229. 

5. Specific Denial. — A specific denial to each 
allegation , of a complaint is a separate denial of the 
particular allegation controverted. The plaintiff, if he 
verified his complaint, could compel the defendant to 
deny specifically each separate allegation. — San Fran- 
cisco Gas Co. vs. Tho City, 9 Cal., p. 453. The rules 
of pleading are meant to prevent evasion, and require 
a denial of every specific averment in a verified com- 
plaint, in substance and in spirit, and not merely a 
denial of its literal truth; and w^henever the defendant 
fails to make such denial, he admits the averment. — 
Blankman vs. Vallqjo, 15 Cal., p. 638; see, also. Fish 
vs. Beddington, 31 Cal., p. 185. 

6. In Ejectment all matter of defense must 
be stated in Answer. — In ejectment the defendant 
is bound to bring forward all matter of a strictly 
defensive character, or be precluded from again litigat- 
ing the same; but ho is not bound to set up or litigate 
new matter constituting a cause of action in his favor.— 
Ayres vs. Bensley, 32 Cal., p. 620. 

7. Denial on information and belief. — If, from 
the nature of the fact alleged, tho knowledge is pre- 
sumptively on information, defendant is not bound to 
deny positively, but only ** according to his information 
and belief; " in such case he must answer according to 
both his information and belief. The word ** belief," 
means the actual conclusion of the defendant drawn 
from information. — Humphreys vs. McCall, 9 Cal., p. 
59. A denial is not sufficient which states that the 
defendant, a municipal corporation, has no knowledge 
or information " in re^•pect to the obligations of a count 
In a verified complaint, and therefore denies the same.'' 
San Francisco Gas Co. vs. The City, 9 Cal., p. 458; 
see, also. Brown vs. Scott, 25 Cal., p. 189, and cases 
there cited; also, Fish vs. Beddington, 31 Cal., p. 1S5. 

8. Denial on information and belief by Ad- 
ministrator. — An allegation by an administrator as 
defendant, which "avers, on information and belief, 



CoDB OF Civil Procedure. 861 

that no such deed or deeds were ever executed,'* is a 
suficient denial of an allegation in the complaint that 
decedent executed and delivered the particular deeds 
referred to. — Thompson vs. Lynch, 29 Cal., p. 189. 

9. Denial on ikformatzon and belief, when 
INSUFFICIENT. — If the averments of a verified com- 
jdaint are presumptively within the knowledge of the 
defendant, a denial of the same in the answer, accord- 
ing to his information and belief, is evasive of the issue 
tendered. It should state how it happened that de- 
fendant is not informed of the fact alleged. — Brown vs. 
Scott, 25 Cal., p. 194*. And as to what may and what 
may not be denied upon information and belief, see 
Humphreys vs. McOall, 9 Cal., p. 59; Kubland vs. 
Sedgwick, 17 Cal., p. 128; Vassault vs. Austin, 32 Cal., 
p. 697; Ord vs. Steamer Uncle Sam, 13 Cal., p. 369; 
San Francisco Gas Co. vs. City, 9 Cal., p. 453; Brown 
vs. Scott, 25 Cal., p. 189; Fish vs. Reddington, 31 Cal., 
p. 185. An averment of the deatH of plaintiff's ances- 
tor in a verified complaint will not be controverted by 
answer '* that defendant has not sufficient knowledge to 
form a belief,*' and therefore neither admits nor denies. 
Anderson vs. Parker, 6 Cal., p. 197. The allegation of 
a verified complaint cannot be controverted by a denial 
of sufi&cient knowledge or information upon the sub- 
ject to form a belief. — Curtis vs. Richards & Vantine, 
9 Cal., p. 33; id., p. 453. A denial "on infOTmation 
and belief*' is sufficient. It is not necessary to follow 
the precise words of the statute, by saying " on his in- 
formation and belief," etc. — Roussin vs. Stewart, Oct. 
Term, 1867. 

10. What are Good Denials.— Instead of deny- 
ing the complaint in express terms, averments that the 
defendant did not commit the act charged, or that the 
facts alleged to exist do not exist, traverse the matters 
alleged, and are good denials of the allegations of com- 
plaint.—Hill vs. Smith, 27 Cal., p. 479. If defendant 
does not deny the charges in a complaint, making out 
a prima facie case for the plaintiffs, on him will rest the 
onus of proving his affirmative allegations. — Thomp- 
son vs. Lee, 8 Cal., p. 275. See, also, Caulfield vs. 
Sanders, 17 Cal., p. 669. Averments of mere evidence 
are not admitted by failure to deny them in the answer. 
Bacouillat vs. Rene, 32 Cal., p. 460. If the complaint 
is verified, a general denial in the answer admits all its 
material allegations. — Pico vs. Colimas, 32 Cal., p. 678. 

11. Denial^ when sxrFFiczENT, *'t7pon infobma- 



46 — Vol. I. 



J 



362 CoDB OF Civil Procedtjrb. 

TioN AND BELiEP.'' — ^A denial of a material allegation 
of a complaintf " upon information and belief," is a 
sufficient denial to raise issue thereupon. — Jones vs. 
City Petaluma, 86 Cal., p. 231, affirming Yassault vs. 
Austin, 32 Cal., p. 597, and Boussin vs. Stewart, 33 
Cal., p. 208. 

12. What ib a bufficiknt Denial— Waivii^g 
INSUFFICIENCY OF DENIAL. — Where certain material 
allegations of the complaint were so defectively denied 
that such denials might, upon motion, have been 
stricken out as sham and irrelevant; yet, without any 
objection, the plaintiff was allowed to introduce evi- 
dence in support of the averments, during the trial it 
was held that, by the introduction of such evidence, 
the plaintiff waived all objection to sufficiency of such 
denial, and the Court properly refused to instruct the 
jury that the facts averred were admitted to be true, 
because not properly denied. — Tynan vs. Walker, 85 
Cal., p. 635. 

13. Denial of Material Allegations only 
SUFFICIENT. — A denial of the ultimate facts, or 
material allegrationa of the complaint, is sufficient. — 
Moore vs. Murdock, 26 Cal., p. 524; Racouillat vs. 
Bene, 32 Cal., p. 450. 

14. What is a sufficient Denial to put Plain- 
tiff ON Proof as to a Contract. — Murphy vs. 
Napa Co., 20 Cal., p. 497. 

15. Setting forth Contract in terms in 
Answer. — Defendant may ask profcrt of a written in- 
strument, or may, if it is misstated in complaint, set 
forth in his answer the contract in hose verba^ and 
then demur on ground of variance. — Stoddard vs. 
Treadwell, 26 Cal., p. 294. 

16. Matter contained in Complaint by way 
OF anticipating a Defense need not be Denied. 
The complaint stated a cause of action for goods sold, 
and, in addition, with a view to meet a probable de- 
fense of payment based upon the giving of certain 
notes by defendant and a receipt in full by plaintiff, 
stated the making of the notes and receipt and alleged 
facts attending the transaction, which, if true, avoided 
its effect as payment by reason of fraud and misrep- 
resentation on the part of defendant. The answer 
admitted the original demand and averred payment by 
the notes referred to in the complaint, but did not deny 
the allegations in the complaint respecting the fraud of 
defendant in the transaction. It was held that the alle- 
gations of the complaint in reference to the transac- 
tion, claimed to operate as payment, were not material 



CoDB OF Civil Procedure. 



363 



allegations requiring a denial, and were not therefore 
admitted by the failure of defendant to deny them. — 
Canfield vs. Tobias, 21 Cal., p. 349. 

17. CoxcLusioNs OF Law must not be Denied. — 
Denial of debt, without a denial of any of the facts 
from which the debt followed, as a conclusion of law, 
raises no issue. — Curtis vs. Richards et al., 9 Cal., p. 
33; Wells vs. McPike, 21 Cal., p. 215. A denial of a 
conclusion of law, without the denial of the facts, is 
insufficient. — Nelson vs. Murray, 23 Cal., p. 338; Wed- 
derspoon vs. Rogers, 32 Cal., p. 569; People vs. Super- 
visors of San Francisco, 27 Cal., p. 655. 

18. Denial of Conclusions of Law admission 
OF CERTAIN Facts. — If a Complaint alleges that de- 
fendant ** wrongfully and unlawfully " took and carried 
away personal property, and the answer denies that 
defendant " wrongfully and unlawfully '* took and car- 
ried it away, it is an admission of the taking and carry- 
ing away, and only a denial of its wrongful character. 
Lay vs. Nevill, 25 Cal., p. 549. 

19. Answering one of several Averments.— An 
averment purporting to answer the whole complaint, 
but in fact only answering one of the two averments, 
is bad. This was the rule at common law, and it 
applies under our system. — Wallace vs. Bear River 
Water and Mining Co., 18 Cal., p. 461. 

20. General Denial under Forcible Entry and 
Detainer Act. — Under the Act concerning forcible 
entries and unlawful dotainer, a verified "general de- 
nial '* was a sufficient denial of a complaint duly veri- 
fied. — Sullivan vs. Gary, 17 Cal., p. 85. 

21. Denial of Conclusion of Law and immate- 
rial issues Insufficient Denial. — The complaint 
alleged that on a certain day plaintiff was the owner 
and in possession of the property, and that its value 
was a certain sum. The ar.swer, denying that on the 
day Hpccified ** the plaintiff was the owner and lawfully 
in possession," and as to its value, averring that the 
defendant has no knowledge, etc., and therefore denies 
that it is worth the said sum, is insufficient, because it 
raii^es an immaterial issue as to time; and, as to the 
possession of the property, it amounts merely to a con- 
clusion of law. — Kuhland vs. Sedgwick, 17 Cal., p. 123. 
An answer to allegations in a complaint which states 
the rendition of a judgment against the defendant, 
and states the character of the judgment, denying that 
the defendant became or was lawfully bound by the 
judgment, is only a denial of a conclusion of law, and 
does not raise an issue of fact. If the judgment can 



364 CoDB OF Civil Procedure. 

be attacked collaterally, the answer must specify the 
points of its invalidity. — People vs. Supervisors of San 
Pranclscoi 27 Cal., p. 655. And if the passage of a 
municipal ordinance is alleged, an answer stating in 
general terms that the ordinance is void and illegal is 
insufficient, as no i^sue of fact is raised. — People vs. 
Supervisors of San Francisco, 27 Cal., p. 655. 

22. What are deemkd Insufficiekt Bekials. — 
In a suit to recover the possession of personal prop- 
erty, an averment that the ** plaintiff was the owner 
and in possession of the property," is not traversed by 
an answer which denies that the *^ plaintiff was the 
owner and entitled to the possession of the property." 
Nor is the averment that the "defendant wrongfully 
took the property from plaintiff's possession, and from 
thence to the time the action w^as commenced wrong- 
fully detained the same," traversed by a denial ** that 
the defendant at any time wrongfully took and de- 
tained the property from the plaintiff. If the answer 
does not traverse the material allegations of the com- 
plaint, and does not set forth facts sufficient to consti- 
tute a defense, and the pleadings are not verified, a 
closing denial that " the defendants denying each and 
every allegation set forth in plaintiff's complaint not 
consistent with the foregoing answer," fails to raise 
any issue, and is bad. — Richardson vs. Smith, 29 Cal., 
p. 530. An answer is insufficient and bad if it does not 
deny any of the material allegations of a verified com- 
plaint, either positively or according to information 
and belief; these are the only forms in which the alle- 
gations of a veritied complaint can be controverted so 
as to raise an issue. A denial in any other form is 
unknown to our system or practice, and is badL. — San 
Francisco Gas Co. vs. Tlie City, 9 Cal., p. 453. 

23. What are deemed Sham or. Irsslevakt 
Akswers. — Sham or irrelevant answers may be 
stricken out, on motion. Answers consisting in whole 
or in part of defective denials, which do not explicitly 
traverse the material allegations of the complaint, are, 
as to such denials, sham and irielevant within the 
meaning of the Code.— Tynan vs. Walker, 35 Cal., p. 
646, citing People vs. McCumfier, 18 N. Y., p. 315; 
Gay vs. Winter, 34 Cal., p. 153. 

24. Denial of Allegations stated conjunc- 
tively IN Verified Complaint. — An answer is 
insufficient which attempts to deny these allegations as 
a whole, conjunctively stated. And the allegation 
thus attempted to be denied is, in fact, admitted. — ^Doll 
Ts. Good, 88 Cal., p. 287. The material fkcts of the . 



Code of Civil Procedure. 



365 



complaint, stated conjunctiyoly, except the allegation 
that by reason of the premises the plaintiff has been 
injured and sustained damage in the sum of ten thou- 
sand dollars, aro undertaken to be answered by the 
defendant's denying them a^ a whole, as conjunctively 
stated, as will be seen by placing any one agg^gated 
statement of thereto. This mode of answering is in 
violation of the principles of common law pleading, 
and not less so of the statute, which provides that the 
defendant's answer to a verified complaint shall contain 
a specific denial to each allegation of the complaint con> 
troverted, or a denial thereof according to the defend- 
ant's information and belief. Those interested, and who 
have any doubt on the subject, will find the following 
authorities worthy of careful examination: Blankman 
vs. Vallejo, 15 Cal., p. 368; Kuhland vs. Sedgwick, 17 
Cal., p. 123; Caulfleld vs. Sanders, 17 Cal., p. 569; 
Browii vs. Scott, 25 Cal., p. 195; Landers vs. Bolton, 
26 Cal. p. 417; Bu>enius vs. Coffee, 14 Cal., p. 91; 
Henshjy vs. Tartar, 14 Cal., p. 508; Hopkins vs. Ev- 
erett, 6 How. Pr. R., p. 159; Salinger vs. Luck, 7 How. 
Pr. R., p. 430; Davidson vs. Powell, 16 How. Pr. R., 
p. 467; Sherman vs. N. Y. Central Mills, 1 Abbott, p. 
187; Baker vs. Bailey, 16 Barb., p. 54; Fish vs. Red- 
dington, 31 Cal., p. 194. 

25. Insufficient Denial is admission of truth 
OF AYKKMENTs IN CoMPLAiNT. — On failure of proper 
denials, plaintiff is entitled to judgment upon the 
pleadings. The rules of pleading under our system 
are intended to prevent evasion and to require a denial 
of every spec^ific averment in a sworn complaint, in 
substance and in spirit, and merely a denial of its 
literal truth, and whenever the defendant fails to make 
such denial he admits the averment. — Doll vs. Good, 
IW Cal., p. 290, citing as authority Smith vs. Rich- 
mond, 15 Cal., p. 501; Blankman vs. Vallejo, id., p. 
638; Ca^stro vs. "Whetmore, 16 id., p. 380; Higgins vs. 
"Wortell, 18 id., p. 333; Woodworth vs. Knowlton, 
22 id., p. 169; Landers vs. Bolton, 26 id., p. 417; Mor- 
rill vs. Morrill, id., p. 292; Camden vs. Mujlen, 29 
id., p. 564; Blood vs. Light, 31 id., p. 115. 

26. Failure to Deny when not an Admission. — 
If a complaint alleges the value of all the property 
destroyed, for which the action is brought, in gross — 
for some items of which no recovery can be had — an 
answer containing no denial of the averment of value, 
does not thereby admit the value of the property for 
which a recovery may be had. — Nunan vs. San Fran- 
cisco, 38 Cal., p. 689. 



866 Code of Civil Procedure. 

27. Denial of Averments in the exact words 
OF the Complaint — Denial of im^u^terial issues. 
A denial of a debt as to time, amount, and work, in 
the precise words of the complaint, raises only an im- 
material issue upon th&sc particulars, instead of meet- 
ing the substantial matter averred, and is therefore 
bad.— Caul field vs. Sanders, 17 Cal., p. 5()9. The Code 
system is intended to prevent evasion, and to require a 
denial of each specific averment in a verified complaint 
in substance and in spirit, and not merely a denial of 
its literal truth; and whenever the defendant fails to 
make such denial, he adniits the allegations. — Smith 
vs. Richmond, 15 Cal., p. 501; see Camden vs. Mullen, 
29 Cal., p. 564; LeflBngwell vs. Greffing, 31 Cal., p. 
231; Landers vs. Bolton, 26 Cal., p. 416. A denial 
merely of what is non-essential in the allegations of a 
complaint, is an admission of all that is essential to 
a recovery. — LefSngwell vs. Greffing, 31 Cal., p. 231. 

28. Denial of Indebtedness in exact amount 
IS BAD. — "Where the complaint, verified, avers that 
defendant is indebted to plaintiff for goods, wares, and 
merchandise, sold and delivered, in the sum of eight 
hundred and twenty-eight dollars and sixteen cents, an 
answer denying that defendant is indebted in the sum 
of eight hundred and twenty-eight dollars, sixteen 
cents, as is set out in complaint, is bad. — Higgins vs. 
Wortell, 18 Cal., p. 330; see Woodworth vs. Knowl- 
ton, 22 Cal., p, 164; Towdy vs. Ellis, 22 Cal., p. 650; 
Verzan vs. McGregor, 23 Cal., p. 339. 

29. Other insufficient and bad Denials. — 
Where an allegation in a verified complaint embraces 
several distinct propositions stated conjunctively, a 
denial in the answer, of the entire averments following 
the exact words of the complaint, raises no issues and 
is bad.— Wood worth vs. Knowlton, 22 Cal., p. 164; 
Beed vs. Calderwood, 32 Cal., p. 109. When several 
averments are not joined by the conjunction "and," 
a denial of the allegations, conjunctively, will not 
amount to a denial of the allegations; each propa<$ition 
should be separately denied. — Fitch vs. Bunch, 30 Cal., 
p. 208; More vs. Delvalle, 28 Cal., p. 170; Fish vs. 
Beddington, 31 Cal., p. 185. An answer to a material 
allegation of a verified complaint which denies the 
same upon information and belief, is insufficient. — 
Nelson vs. Murray, 23 Cal., p. 388. 

30. Other insufficient Deniaia.— An answer to 
a verified complaint which denies "generally and spe- 
cifically each and every material allegation in the com- 
plaint the same as if such allegation were herein reca- 



Code of Civil Procbdurs. 



867 



pitulated," and also denying each allegation in the 
same form, with certain qualifications and exceptions, 
does not raise an issue upon any fact stated in the com* 
plaint. — Hensley vs. Tartar, 14 Cal., p. 508. An alle- 
gation, in a verified complaint, that ** defendants wrong- 
fully and unlawfully entered upon and dispossessed ** 
plaintiff, is not sufficiently denied by a denial that 
*Mefendants wrongfully and unlawfully entered and 
dispossessed plaintiff," because such denial admits 
entry and ouster. — Busenius vs. Coffee, 14 Cal., p. 91. 

31. Consistency op Answer in all its parts.— 
Where the admissions in an answer are opposed to its 
general denials, the denials will be disregarded, and 
judgment given upon the former, where the complaint 
is verified, and the answer consists of such admissions 
and denials. — Fremont vs. Seals, 18 Cal., p. 433; see, 
also, Elink vs. Cohen, 13 Cal., p. 623; Uridias vs. 
Morrell, 25 Cal., p. 35. Where an amended answer is 
inconsistent with the original answer, the two cannot 
stand together. — Kuhland vs. Sedgwick, 17 Cal., p. 123. 
A verified answer must not deny in one sentence what 
it admits to be true in the next. — Hensley vs. Tartar, 
14 Cal., p. 508. 

32. Sufficiency of Denial, how to be deter- 
mined. — In order to determine whether the denials of 
an answer are evasive, each separate denial of each sep- 
arate averment must be taken by itself. If the answer 
to a particular averment is a denial of it, and there is 
no admission in the answer inconsistent with this denial, 
an issue is fiiirly made. — Bacouillat vs. Rene, 32 Cal., 
p. 450. 

33. Misjoinder and Nonjoinder of parties 
Plaintiff and Defendant. — Objection to misjoin- 
der of parties defendant should be taken by demurrer 
or answer. An answer will not be treated as a plea in 
abatement for a misjoinder of parties defendant, after 
the testimony has disclosed a proper cause of action 
against them. — Warner vs. Wilson, 4 Cal., p. 313. 
Where two are joined as plaintiff in an action for the 
recovery of possession of land, a denial in the answer 
that the plaintiffs were in possession of the land does 
not raise the issue of a misjoinder of either of the plain- 
tiffs. — Oillman vs. Sigman, 29 Cal., p. 637. For non- 
joinder of parties plaintiff, see Whitney vs. Stark, 8 
Cal., p. 516. And for answer setting up misjoinder 
and nonjoinder of parties. — Fulton vs. Cox, 40 Cal., 
p. 105. 

34. An Answer is not Evidence. — Goodwin vs. 
Hammond, 13 Cal., p. 168. Nor does it require two 



S68 CJoDB OE Civil Prockdubb. 

witnesses to controvert a verified answer. — Bostic vs. 
Love, 16 Cal., p. 69; Blankman vs. Vallejo, 15 Cal., 
p. 638. 

35. What Proof may bk made uyDER bpecotc 
AND QVNERAL Dkkials. — See Jackson vs. Feather 
River Water Co., 14 Cal., p. 18; Hawkins vs. Borland, 

14 Cal., p. 413. It was held, that defendant may prove 
an eviction on a claim for rent in arrcar, under the plea 
nil detnt, or general denial. — McLuren vs. Spaulding, 
2 Cal., p. 510. But this was overruled in Piercy vs. 
Tobin, 10 Cal., p. 80, and consequently an eviction 
mxiai be set up in the answer. 

36. Allegations or Complaint Admitted, when 
NOT Denied. — Unless tlie answer denies the allega- 
tions of the complaint, they are admitted, and consti- 
tute conclusive evidence of the extent of the damages 
claimed.— Patterson vs. Ely, 19 Cal., p. 28. The fiiil- 
ure to deny a material allegation is an admission of the 
facts contained in such averment, and such admission 
is conclusive. — Burke vs. Table Mountain Co., 12 Cal., 
p. 403. Under the Code, a specific denial of one or 
more allegations is held to be an admission of all others 
well pleaded. — Do R6 vs. Cordes, 4 Cal., p. 117. An 
admission without fraud to rights of client, by an attor- 
ney of record, of the correctness of an amount due, for 
which judgment is taken, destroys the efiTect of a denial 
in an answer. — Taylor vs. Bandall, 5 Cal., p. 79. An 
answer is not proof for defendant, but an admission in 
the answer of a fact stated in the complaint is con- 
clusive evidence against him. — Blankman vs. Vallejo, 

15 Cal., p. 638. If the complaint contains two causes 
of action and the answer takes issue on the allegations 
of but one, plaintifiT is entitled to judgment on the 
other. — Leffingwell vs. GrefiUng, 31 Cal., p. 231. 

37. Allegations not Denied are deemed to 
BE Admitted.— The intent of the statute is fully car- 
ried out by excluding parol testimony to contradict a 
deed; but where parties admit the real facts of the 
transaction in tbeir pleadings these admissions are to 
be taken as modifications of the instrument. — Lee vs. 
Evans, 8 Cal., p. 424. No evidence is required as to 
fincts not denied.— Satterson vs. Ely, 19 Cal., p. 28. 

38. What must be specially stated in Answer. 
Special Defenses.— Statute Limitations, see Sec. 458, 
post, also No. 47, post. Release. — Coles vs. Soulsby, 21 
Cal., p. 50; Turner vs. Caruthers, 17 Cal., p. 431. Statute 
of Frauds.— Osborne vs. Endicott, 6 Cal., p. 149. Sub- 
sequently acquired title by defendant in ejectment. — 
Hoss vs. Shear, 30 Cal., p. 468. Transfer of title by 



Code of Civil Procedure. 369 

plaintiff.— Id. Tax titles.— Russell vs. Mann, 22 Cal., 
p. 132. Tax titles accruing after action commenced. — 
McMinn vs. O'Connor, 27 Cal., p. 246; see "supple- 
mental answer." Composition with creditors. — Smith 
vs. Owens, 21 Cal., p. 11. Counter claim should be 
pleaded. — Hicks vs. Green, 9 Cal., p. 74. Disclaim- 
ers.— 14 Cal., p. 576; Du Uprey vs. Du Uprey, 27 Cal., 
p. 331. Equitable titles, defenses, and estoppels. — 
Clarke vs. Huber, 25 Cal., p. 597; Carpentier vs. The 
City of Oakland, 30 Cal., p. 439; Flandreau vs. Dow- 
ney, 23 Cal., p. 354; Blum vs. Robertson, 24 Cal., p. 
146; Downer vs. Smith, 24 Cal., p. 124. Estoppels. — 
Clarke vs. Huber, 25 Cal., p. 593. An estoppel by deed 
or matter of record should be pleaded as such, where 
there is an opportunity to plead it. — Flandreau vs. 
Downey, 23 Cal., p. 354. Eviction of the tenant must 
bo set up, when. — Piercy vs. Sabin, 10 Cal., p. 30. For 
fixture of mining claims. — Wiseman vs. McNulty, 25 
Cal., p. 230; Dutch Plat Co. vs. Mooney, 12 Cal., p. 
534. Former recovery. — Vance vs. dinger, 27 Cal., 
p. 358; Marshall vs. Shatter, 32 Cal., p. 176. Fraud, 
etc. — People vs. Supervisors of San Francisco, 27 Cal., 
p. 656. Grant of an easement or servitude. — American 
Co. vs. Bradford, 27 Cal., p. 368. Misjoinder of par- 
ties plaintiff, owing to matters which have occurred 
pending the action, must be taken by supplemental 
answer, or it is waived. — Calderwood vs. Pyser, 31 Cal., 
p. 333. New matter must be specially pleaded. — Coles 
vs. Soulsby, 21 Cal., p. 47. New matter occurring 
after issue joined must be set up by supplemental 
answer.— Jessup vs. King, 4 Cal., p. 331, Payment. — 
Col^s vs. Soulsby, 21 Cal., p. 47; id., p. 71. In Frish 
vs. Caler, 21 Cal., p. 71, it is held that a plea of pay- 
ment is not new matter, and in Fairchild vs. Ams- 
baugh, 22 Cal., p. 575, the Court say it follows that it 
is not necessary to set it up as a special defense in the 
answer; but this is opposed to the opinion of Field, C. 
J., in Green vs. Palmer, 15 Cal., p. 417; and Burnett, 
J., in Piercy vs. Sabin, 10 Cal., p. 27, and to the numer- 
ous authorities in New York and elsewhere; see Yooh^s 
N. Y. Code (8th ed.), p. 274; id., p. 2846/ Vansant- 
word*8 PK, p. 454; see 10 Cal., p. 30. Unworkmanlike 
manner of doing work. — Kendall vs. Vallejo, 1 Cal., 
p. 371. Want of capacity in a plaintiff to sue. — Cali- 
fornia Steam Navigation Co. vs. "Wright, 8 Cal., p. 
585. That items in an account stated are overcharged. 
Terry vs. Sickler, 13 Cal., p. 427. Abandonment of 



47— Vol. L 



370 CJoDE OF Civil Procedure. 

land n^ not be pleaded. — Wilson vs. Cleaveland, 30 
Cal., p. 192. Abandonment was affirmatively averred 
by the defendant in St. John vs. Kidd, 2A Cal., p. 
2(56. Abatement.— Toom 8 vs. Randall, 3 Cal., p. 448; 
Hentsch vs. Portcjr, 10 Cal., p. 655. Another action 
pending was pleaded in the case of O'Conner vs. Blake, 
29 Cal., p. 314; Calaveras Co. vs. Brockway, 30 Cal., 
p. 325. Accord and satisfaction. — Coles vs. Soulsby, 
21 ChL, p. 47; Piercy vs. Sabin, 10 Cal., p. 30. 

39. Pleading Dibcharge in Insolvency. — Babm 
vs. Minis, 40 Cal., p. 421. 

40. Pleading Equitable Titles. — It is not the 
province of the jury, but of the Court, to pass upon the 
equitable title set up in the answer, and it must be 
sufficiently pleaded to authorize the Court to grant a 
decree which will estop the further prosecution of the 
action. — Downer vs. Smith, 24 Cal., p. 114 ; Arguello 
vs. Edinger, 10 Cal., p. 150 ; Lestrade vs. Barth, 19 
Cal., p. G60 ; Patterson vs. Ely, 19 Cal., p. 28 ; Estrade 
vs. Murphy, id., p. 248 ; Meador vs. Parsons, id., p. 
294 ; Blum vs. Robertson, 24 Cal., p. 124 ; Daiva vs. 
Daivs, 26 Cal., p. 38 ; Clarke vs. Huber, 25 Cai., p. 
593. 

41. New Matter set up in Answer. — Wliere 
the pleadings are verified, every matter of defense not 
directly responsive in the allegations of that complaint 
must be alleged in the answer. — Terry vs. Sickles, 13 
Cal., p. 427. New matter must be specially pleaded; 
and, in ejectment, a transfer of title by the plaintiff, or 
a title acquired by defendant pending the action, must 
be pleaded by supplemental answer or it cannot be 
given in evidence. — Moss vs. Shear, 30 Cal., p. 468. 

42. Introduction of new matter in Avoid- 
ance. — When defendant seeks to introduce into the 
case a defense not disclosed by the pleadings; when 
something relied on by defendant which is not put in 
issue by the plaintiff, this is new matter. — Bridges vs. 
Paige, 13 Cal., p. 640; see, also. Coles vs. Soulsby, 21 
Cal., p. 47. 

In Piercy vs. Sabin, 10 Cal., p. 27, the Court say: 
'* Under Sec. 437 there are only two classes of defense 
allowed. The first consists of a simple denial; and the 
second, of the allegation of new affirmative matter. 
And as the Code has abolished all distinctions in the 
forms of action, and requires only a simple statement 
of the facts constituting the cause of action or defense, 
these two classes of defense must be the same in all 
cases. 
* ** The plaintiff is required to state in his complaint 



Code of Civil Procedure. 371 

the facts that constitute his cause of action; and it 
seems to have been the intention of the Code to adopt 
the true and just rule, that the defendant must either 
deny the facts as alleged or confess and avoid them. 
It is certain that where new matter exists it must be 
stated in the answer. The answer 'shall contain a 
statement of any new matter constituting a defense.' 
The language of this section is very clear, that this new 
matter, whatever it may be, mu!>t be set up in the 
answer. The question then arises: w^hat is *new 
matter ' in the contemplation of the Code itself? New 
matter is that which, under the rules of evidence, the 
defendant must affirmatively establish. If the oniLS of 
proof is thrown upon the defendant, the matter to be 
proved by him is new matter. A defense that concedes 
that the plaintiff o^ice had a good cause of action, but 
insists that it no longer exists, involves new matter. — 
1 Ch. Plea., p. 472; Gilbert vs. Cram, 12 Howard Pr. 
Rep., p. 445; Badde vs. Birckgaher, 3 Duer, p. 685; 2 
Keenan, p. 17. 

**If facts which occur subsequent to the date of the 
original transaction do not constitute netv matter, what 
facts do constitute it? And if any subsequent matter 
can properly be called *new matter,' must not all 
subsequent matters be equally entitled to the same 
designation? The language of the Code is explicit, 
that the * answer shall contain a statement of any new 
matter constituting a defense.' The Code makes no 
distinction between different classes of new matter. 
All new matter of defense must be stated in the 
answer. 

" This feature of the Code is one of the most benefi- 
cial and obvious improvements upon the former system. 
This classification of defenses is simple, logical, and 
just. Each party is distinctly apprised of all the alle- 
gations to be proven by the other; and each is, there- 
fore, prepared to meet the proofs of his adversary. The 
plaintiff is compelled to set out every fact necessary to 
constitute his cause of action, and the defendant every 
new matter of defense. This is required by the true 
principles of pleading. — 1 Ch. Plea., p. 526. 

** Two of the leading ends contemplated by the Code 
are simplicity and economy. — Adams & Co. vs. Hackett 
& Casserly, 7 Cal. Rep., p. 187. As contributing to 
the attainment of these ends, it was the intention of 
the Code to require the pleadings to be so Tramed as 
not only to apprise the parties of the facts to be proved 
by them, respectively, but to narrow the proofe upoa 
the trial. This intention is clearly shown, not only^y 



1 



372 Code op Civil Procbdurb. 

the spirit and general scope of the system, but by par* 
ticular provii^ions. The different provisions of the Act, 
when construed together and legitimately applied, lead 
to this conclusion. 

** If we take the theory to be true, that under our 
system the defendant, by simply denying the allega- 
tions of the complaint, may give in evidence all matters 
which could be formerly given in evidence under the 
general issue, it is difficult to perceive what purpose 
the Code has accomplished by the provisions of Sec. 
437. The classification of defenses therein found would 
be substantially useless. In vain has that section pro- 
vided that the answer shall contain a statement of any 
new matter constituting a defense, when nearly all 
such matter could be given in evidence under a simple 
denial in the answer. Under the former system almost 
every matter in discharge of the action could be given 
in evidence under the general issue. 

** But this theory would seem to be liable to the 
most substantial objections, and to lead, in practice, to 
bad results. 

**The plaintiff states the facts that constitute his 
cause of action. He is not required to state conclu- 
sions of law. The liability of the defendant is the 
result or conclusion which the law draws from the facts 
alleged. If a complaint should only allege that the 
defendant was indebted to the plaintiff in a named 
sum, which the defendant refused to pay, the complaint 
would not state facts sufficient to constitute a cause of 
action. The complaint must allege the facts that con- 
stitute the indebtedness. When, therefore, the facts 
constituting the cause of action are stated, a simple 
denial of these facts can properly put in issue only the 
constituent facts, and not the mere conclusion from the 
facts. The plaintiff, therefore, comes prepared to prove 
the facts, as alleged. But if the defendant, under his 
simple denial, is permitted to prove almost everything 
in discharge of the action, the plaintiff cannot know how 
to avoid surprise upon the trial, unless he comes pre- 
pared to meet every possible ground that may be taken 
by the defendant. The result is a great and unneces- 
sary increase of costs in many cases. The plaintiff is 
not to blame, because he could not know what he had 
to meet. The defendant is not to blame, because he 
only wished to deny the allegations of the complaint, 
* and not to introduce any new matter. But the rale 

would not allow him to do so, in a form that would 
apprise the plaintiff clearly of all he intended, and no 
more. The rule made liis answer wider than he in- 



Code op Civil Procedure. 373 

tended. He simply denied the allegations of the com- 
plaint. He could do no less, if he defended at all. 

" If it be said that under Sec. 441 the defendant may 
plead as many defenses as he may have — and in this 
way compel the plaintiff to come prepared to meet as 
many grounds as he would have had to meet under 
the general issue — we reply that the argument is not 
sound. Under the view we have taken, the defendant 
may protect himself again^^t unnecessary costs by only 
putting in issue the allegations of the complaint, or by 
conceding them to be true and setting up new matter, 
thus narrowing the proofs upon the trial. So, under 
our view, the plaintiff is protected against sham de- 
fenses, which may be stricken out on motion. — Sec. 453. 
A sham answer is one good in form but false in fact, 
and not pleaded in good faith. It sets up new matter 
which is false. — 6 How. Pr. Rep., p. 355; 9 How. Pr. 
Rep., pp. 67, 215, 217; Voorhies' Code, p. 177, Note B. 

" But if it be true that under a simple denial in the 
answer the defendant may give in evidence any defense 
formerly admissible under the general issue, the pro- 
visions of Sec. 453, allowing sham answers to be stricken 
out, would possess but very little practical utility. A 
simple denial could not be treated as a sham answer; 
and yet all the purposes of vexation could be as well 
accomplished by it as by separate defenses. So, the 
provisions of Sec. 441, requiring defenses to be sepa- 
rately stated, would be almost useless. As most of 
these new matters could be given in evidence under the 
negative answer, they need not be stated at all. An- 
ciently, in England, the general issue was seldom 
pleaded, except when the defendant meant wholly to 
deny the allegations of the declaration. Matters in dis- 
charge of the action were specially pleaded. But by 
Acts of Parliament special matter was allowed to be 
given in evidence, under the general issue, in certain 
cases, affecting public officers. The rule was gradually 
extended to other cases. It was the opinion of Sir • 

William Blackstone that this relaxation of strictness, 
anciently observed, did not produce the confusion anti- 
cipated. This supposition prevailed for a long time, 
but subsequent experience led to a change of opinion. 
The result of this change was the adoption of the Reg. 
Gen. Hil, T., 4 W., p. 4, which puts an end to the 
misapplication and abuse of the general issue, and 
compels a defendant in terms to deny particular parts 
of the declaration, and to plead specially every matter 
of defense, not merely consisting of denial of the alle- 
gations of the declaration. — 1 Oh. Plea., pp. 473, 512. 



374 Code of Civil Procedure. 

These n»giilj\tions restored the ancient rule, and placed 
the science of pleading upon its true principle. The 
framers of the New York Code, from which ours is 
mainly taken, would seem to have intended to accom- 
plish the same result. It has been there held, and 
seems now to be the well settled rule, that new matter 
must be set forth in the answer. Payment, an award, 
or a former recovery, must be pleaded. — Calkins vs. 
Parker, 21 Barbour, p. 275; Brazil v6. I^ham, 2 Kee- 
nan, p. 17. Such defenses admit the contract as alleged, 
but avoid it by matters ex post facto. The decisions of 
this Court have not been uniform upon this question. 
Tlie classification of defenses, under Section 45 of the 
Practice Act of 1850, was the same as that under Sec- 
tion 437 of our present Code. It was held by thi? Court, 
in several cases, that all new matter must be set up in 
the answer.— 1 Cal., pp. 18, 195, 363, 372. But in the 
case of Gavin vs. Annan, Lord & Co, 2 Cal., p. 494, it 
was held that a general denial has the same influence 
as the general issue at common law, and under it 
accord and satisfaction may be shown. To the same 
effect was the decision in the case of McLarrin vs. 
Spalding, 2 Cal., p. 510." 

The general denial only puts in issue averments made 
in the complaint. New matter must be specially 
pleaded, and must be affirmatively established. — Gl&zer 
vs. Clift, 10 Cal., p. 303. Where a negative allegation 
is made, preceding an averment by the opposite party of 
the fact negatived, it constitutes the basis of the issue 
joined by the subsequent averment, and the latter tra- 
verses the negative allegation and is not new matter.— 
Frisch vs. Caler, 21 Cal., p. 71. As to what is and is 
not new matter, see, also, Goddard vs. Fulton, 21 Cal., 
p. 430; Woodworth vs. Knowlton, 22 Cal., p. 164; 
Mulford vs. Estudillo, 23 Cal., p. 94; Ayres vs. Bens- 
ley, 32 Cal., p. 620; Coles vs. Soulsby, 21 Cal., p. 47. 
Where the averments of an answer, although stated 
in an affirmative form, are in effect only a denial of the 
allegations of the complaint, they do not constitute 
new matter within the meaning of. our Practice Act. 
^ If the answer, either directly or by way of necessary 

implication, admits the truth of all the essential aver- 
ments of the complaint which show a cause of action, 
but sets forth facts from which it results that, notwith- 
standing the truth of the allegations of the complaint, 
no cause of action existed in the plaintiff at the time 
the action was brought, those facts are new matter; but 
if the fiicts averred in the answer only show that some 
essential allegation of the complaint is untrue, then 



CoDB OF Civil Procedure. 375 

• 

they are not new matter, but only a traverse. And, 
generally, as to new matter, see Goddard vs. Pulton, 
21 Cal., p. 430. 

43. Matter in Abatement— Pleas in abatement 
are not favored, and the party must prove the plea as 
pleaded. — Thompson vs. Lyon, 14 Cal., p. 39. Failure 
to join. — Whitney vs. Stark, 8 Cal., p. 514. Pendency 
of prior action. — Primm vs. Gray, 10 Cal, p. 522; 
Thompson vs. Lyon, 14 Cal., p. 39; Calaveras Co. 
vs. Brockway, 30 Cal., p. 325; People vs. De la Guerra, 
24 Cal., p. 73; O'Conner vs. Blake, 29 Cal., p. 312. 
Mi.«joinder or misnomer of parties defendant. — Warner 
vs. Wilson, 4 Cal., p. 310; Dunn vs. Tozer, 10 Cal., 
p. 170; Rowe vs. Bacigalluppi, 21 Cal., p. 632. Change 
of venue. — Tooms vs. Randall, 3 Cal., p. 438. Non- 
presentment of claim to administrator. — Hentsch vs. 
Porter, 10 Cal., p. 555. W^herever the defense is that 
the plain tiflf cannot maintain any action at any time, it 
must be pleaded in bar; but matter which only defeats 
the present proceeding, and does not show that the 
plaintiff is forever concluded, must generally be pleaded 
in abatement. — Hentsch vs. Porter, 10 Cal., p. 555. 
Want of authority in the attorney of record to com- 
mence an action, cannot be pleaded in abatement. — 
Turner vs. Caruthers, 17 Cal., p. 431. 

44. Answer to enable Court to render Cross 
Judgment for Defendant for value of Personal 
Property. — In a suit to recover personal property, in 
order to enable the defendant to obtain the value of the 
property on judgment of dismissal against the plaintiff 
for default, the answer must contain some averment as 
to the change of possession from defendant to plaintiff. 
Tlie judgment of return or value is in the nature of a 
cross judgment, and must be based upon proper aver- ^ 
ments. Where plaintiff takes the property, the defend- 
ant must claim its return in his answer, to enable the 
Court to give the judgment in the alternative form. — 
Gould vs. Scannell, 13 Cal., p. 430. 

45. Objection to Pleading, w^hen deemed 
waived; Improper Pleading, how cured. — Where 
an equitable estoppel in pais is not properly pleaded, 
but on the trial evidence is introduced without objec- • 
tion, in the same manner as if it had been properly 
pleaded, and a verdict is rendered upon the evidence 
without objection, the objection to the pleading will be 
deemed waived, and the case will be considered as 
though the estoppel had been properly pleaded. — Davis 
vs. Davis, 26 Cal., p. 38. The introduction of evidence 
without objection in support of it will not cure the 



876 Code of Civil Procedure. 

omission of specially pleading a defense. — Smith vs. 
Owen, 21 Cal., p. 11; McComb vs. Reed, 28 Gal., p. 
289. 

46. Answers in Justification. — See Thornburgh 
vs. Hand, 7 Cal., p. 554; Walker vs. Woods, 15 Cal., 
p. 66; Glazer vs. Clift, 10 Cal., p. 303; Coles vs. 
Soulsby, 21 Cal., p. 47, and cases citod; Killey vs. 
Scannell, 12 Cal., p. 73; Lentz vs. Victor, 17 Cal., p. 
271; Knox vs. Marshall, 19 Cal., p. 617; Pico vs. Coli- 
mas, 32 Cal., p. 578; Towdy vs. Ellis, 22 Cal.. p. 650; 
Richardson vs. Smith, 29 Cal., p. 529; McComb va. 
Reed, 28 Cal., p. 281. 

47. Plkadinq Statute of Limitation. — See 
Sees. 312 to 363, ante, and notes, and particularly See. 
458, post. 

48. Answer in Ejectment Suit.— For general mat- 
ters, see Hawkins vs. Reichert, 28 Cal., p. 534; Schenlc 
vs. Evoy, 24 Cal., p. 113; Blankman vs. Vallcjo, 15 
Cal., p. 638; Piercy vs. Sabin, 10 Cal., p. 22; Powell 
vs. Oullahan, 14 Cal., p. 114; Williams vs. Young, 17 
Cal., p. 403; La Rue vs. Oppenheimer, 20 Cal., p. 517; 
Gregory vs. Haynes, 13 Cal., p. 591; Bodley vs. Fer- 
guson, 30 Cal., p. 511; Smith vs. Doe, 15 Cal., p. 100; 
Marshall vs. Shailer, 32 Cal., p. 176; Stephens vs. Mans- 
field, 11 Cal., p. 363; Patterson vs. Ely, 19 Cal., p. 28; 
McQarvey vs. Little, 15 Cal., p. 31; Guy vs. Hanly, 21 
Cal., p. 397; Bell vs. Brown, 22 Cal., p. 671; Ladd vs. 
Stevenson, 1 Cal., p. 18; Moss vs. Shear, 25 Cal., p. 44; 
Burke vs. Table Mt. Co., 12 Cal., p. 403; Wilson vs. 
Cleaveland, 30 Cal., p. 192; Busenius vs. Coffee, 14 
Cal., p. 91; Lestrade vs. Barth, 19 Cal., p. 660; Es- 
trade vs. Murphy, 19 Cal., p. 248; Meador vs. Parsons, 
19 Cal., p. 294; Davis vs. Davis, 26 Cal., p. 38; Downer 
vs. Smith, 24 Cal., p. 124; Blum vs. Robertson, 24 Cal., 
p. 146; see, however. Sec. 379, ante, which materially 
changes the former law as to ejectment cases. 

49. Stating Fraud sufficiently in Answer.— 
Gushee vs. Leavitt, 5 Cal., p. 160; Ward vs. Packard, 
18 Cal., p. 391; Lamott vs. Butler, 18 Cal., p. 32; Kin- 
ney vs. Osborne, 14 Cal., p 112; King vs. Davis, 34 
Cal., p. 100; People vs. Supervisors San Francisco, 27 
Cal., p. 656. 

50. Actions for Divorce.— Conant vs. Conant, 10 
Cal., p. 249; Washburn vs. Washburn, 9 Cal., p. 476; 
Fox vs. Fox, 25 Cal., p. 587; Bennett vs. Bennett, 28 
Cal., p. 599. 

51. Verification of Inconsistent Answer whxv 
Perjury.— Pleadings will be construed moet strongly 
against the pleader when a fact which is directly averrod 



Cobb of Civil Procedure. 37T 

In one part of a verified pleading is in another part di- 
rectly denied, whether it be in the statement of several 
causes of action in a complaint or of several defenses 
in an answer, the party verifying it is guilty of per- 
jury. — Bell vs. Brawn, 22 Cal., p. 671. * 

438. (§ 47.) The counter claim mentioned in the wheo 

^ ' ... oountor 

last section must be one existing in favor of a de- Jjj>™ *• ^» 
fendant and against a plaintiff, between whom a seve- 
ral judgment might be had in the action, and arising 
out of one of the following causes of action: 

1. A cause of action arising out of the transaction 
set forth in the complaint as the foundation of the 
plaintiff's claim, or connected with the subject of the 
action; 

2. In an action arising upon contract; any other 
cause of action arising also upon contract and existing 
at the commencement of the action. 

NoTE.~l. Counter Claim— Evidence op— Loss 
OF Profits as a Counter Claim— Unliquidated 
Damages as Counter Claim — Counter Claim 

WHEN not set up IN ANSWER EVIDENCE THEREOF, 

ETC.— In Stoddard vs. Tread well, 26 Cal., pp. 303-309, 
Justice Shafter, in a very elaborate opinion upon these 
subjects, says: 

**The answer admits the one thousand six hundred 
and forty-three dollars, eighty-seven cents, claimed as 
due on the sale of the goods; and as to the two hun-> 
dred and fifty dollars claimed for personal services dur- 
ing the month of October, 1862, the performance of the 
service is not effectually denied, though all indebted- 
ness on that ground is. The matters of defense more 
particularly relied on are set forth in a special answer 
interposed by way of counter claim. The answer admits 
that the defendants purchased the goods and good will 
named in the special contract; that they employed the 
plaintiff as their chief clerk and managing agent, as 
claimed, and that plaintiff continued in their employ- 
ment without fault until the ninth ^of December, 1861; 
but avers that from that time forth he did not * diligently 
or faithfully, or to the utmost of his ability in all things, 
or in anything, serve defendants as he was boiind to do 
under said contract, but on the contrary, during all 
said time from December 9th, 1861, and more particu- 

48— Vol. I. 



•78 Code op Civil Procedurb. 

larly from April, 1862, to October 21$t, 1862, he grrossl j 
neglected the said business of said defendants, in viola- 
tion of said contract and to the great damage of defend- 
ants. That during all said time, and particularly dur- 
« ing the entire Spring and Summer of 1862, and the 

Pall thereof, up to October 21st, 1862, plaintiff habit- 
ually failed to attend to defendants* said business, 
absented himself from their said store nearly the whole 
of each day, ^nd engaged himself in his own private 
affhirs; in consequence whereof numerous customers 
^ of defendants who had been in the habit of dealing 

with plaintiff prior to his said sale to defendants, and 
also with defendants subsequent to said sale, called at 
said store to make purchases of goods, but not finding 
plaintiff there to trade with, said customers went away 
and traded elsewhere, which they would not have done 
had plaintiff been present attending to his duties under 
said contract; and even when plaintiff was occasionally 
in said store during said period, he manifested no interest 
in defendants' business, and made no effi>rts to keep up 
'said business; and by reason of such neglect, and such 
engaging in his own private affairs, defendants have sus- 
tained great loss and damage, amounting to more than 
the sum clain^ed by plaintiff in his complaint. *   
That the main reason of plaintiff's employment by 
defendants was his acquaintance with said hardware 
business in Sacramento, his skill therein, his knowledge 
of the persons dealing in such trade, and the custom 
his presence (as chief clerk and managing agent) would 
bring defendants; and that by reason of plaintiff's gross 
neglect of defendants' business as aforesaid, the main 
consideration of said stipulation so to employ plain LifT 
has entirely failed. Defendants pray to have their 
damages, sustained as aforesaid, 7'ecouped against the 
amount claimed by the plaintiff, and for judgment for 
the excess, with costs. The defendants offered to prove 
that the expense account of their establishment at Sac- 
ramento was larger than it should have been; that 
plaintiff had changed the boarding place of the hands 
employed, with a view to promote interests of a rela- 
tive, who was employed to board them at a higher 
rate; that the plaintiff employed another relative about 
the store, whose services were entirely unnecessary to 
the proper management of the business; that divers 
instructions were given by the defendants to the plain- 
tiff between December 9th, 186 , and October 15th, 1862, 
relating to the management o the business, which the 
plaintiff disobeyed. The plaintiff ol]|)ected to the in- 
troduction of this testimony, on the ground that these 



Code op Civil Procbdueb. 379 

various nets of misconduct were not specially pleaded. 
In the statement of the counter claim, nothing is alleged 
as the ground of it but neglect, the precise character of 
which is not set forth. The matters which the defend- 
ants offered to prpve are, with the exception of the 
disobedience of instructions, acts of positive miscon- 
duct; and as to the disobedience, it is not included in 
the specification by«which the general charge of negli- 
gence and unfaithfulness in the special answer is 
narrowed down. From this it follows that the testi- 
mony was properly excluded, unless it was admissible 
under the denial of the plaintiff's allegation that ** he 
continued to act as the chief clerk and managing agent 
of said defendants, faithfully and honestly prosecuting 
their said business, and not engaging in any business 
on his own account, and doing all things connected 
therewith as directed by said defendants. 

''We consider that the evidence offered was not admis- 
sible under the denial. The employment and the facts 
of the offer being assumed, it follows that the defend- 
ants had a right of action against the plaintiff, sound- 
ing in damages, for a breach of his undertaking. The 
plaintiff's action is not based upon a quantum, meruit^ 
but is brought to recover a sum stipulated, and by the 
strict rule of the common law, the defendants could 
obtain redress by cross action only. — Sedg. on Dam., 
Chap. 17. But, however this may be, the defend- 
ants, under our system, were put to their election either 
to oppose their claim to the claim of the plaintiff or to 
resort to a cross action; and this whether they claimed 
a deduction merely, or that the two claims were the 
equivalents of each other, or that there was an excess 
in their favor for which they sought a recovery. — Ruiz >» 

vs. Norton, 4 Cal., p. 357; Earl vs. Bull, 15 Cal., p, 
425; Frothingham vs. Everton, 12 N. H., p. 239; 
Cook vs. Mosely, 13 Wend., p. 277. And in either 
alternative, the claim cannot be considered in this 
action, for the reason that it has not been set up by way 
ot counter claim. The right or demand of the defend- 
ants is a counter claim by legal definition, for the 
defendants might have been maintained a suit upon it 
(12 How., p. 311; 13 How., p. 249), and the forty-sixth 
section of the Practice Act requires that the answer of 
a defendant who would avail himself of a counter 
claim 'shall contain a statement' of it. — McKyring 
vs. 3ull, 16 X. ^'., p. 297. The counterclaim asserted 
in the answer goes upon grounds distinct from those 
embraced in the defendant's offer to prove, as has been 
ihown aheftdj. It (Uriher appears fh>m the record 



380 Code op Civil Procedure. 

that the defendants, having first put in evidence that 
tho plaintiff was frequently absent from the store 
between February and October, 1862, and that people 
frequently cnmc to the ftore and asked for the plain- 
tiff, and led on linding him out, inquired of a wit- 
ness as follows: *"What effect had the plaintiff's ab- 
sence during this time (between February and October, 
1862,) to depreciate the business of the store; how much 
damage was it per month? ' The question was objected 
to, but objection overruled; thereupon the witness was 
asked: * What amount of additional business would 
have been done in the store of Treadwell & Co., be- 
tween February and October, 1862, if the plaintiff had 
been there during the entire of the day attending to the 
business of the store as he had previously done in 1861?' 
The question was objected to, on the ground that it was 
too general — that defendants must prove specific acts. 
The objection was sustained. The defendants then 
ofiered to prove by the witness, the amount of sales per 
month in their store in Sacramento, from February^ 
1861, to October of that year, and the corresponding 
sales from February, 1862, to October, 1862, and to show 
further, what the profits were upon such sales during the 
said intervals respectively, with a view to estimate the 
damage per month that accrued to the defendants by 
reason of the absence of the plaintiff from the store, and 
his neglect of their business. Plaintiff objected, on the 
ground that the testimony was incompetent and irrele- 
vant, and that the damages were too remote. The 
Court sustained the objection. Keglect by plaintiff of 
his employer's business, consisting in frequent absence 
from the store, and a loss of custom as consequent 
thereon, was the main ground of the counter claim set 
up in tho answer. It was competent for the defendants 
to prove the neglect stated — that the business was les- 
sened thereby — and the pecuniary loss resulting there- 
from. The objection taken to one of the questions, that 
it was too general, was not tenable. The question put 
the witness broadly upon his own resources. For 
aught that we can know to the contrary, the witness, if 
he had been permitted, could have stated directly the 
additional business that would have been done if the 
plaintiff had not been guilty of the inattention alleged, 
and on cross-examination the grounds of his estimate 
might have been brought out, if he failed to state them 
in chief. But the defendants, accepting the ruling of 
the Court that the question was too general, then offered 
to prove directly the amount of sales in 1861, as com- 
pared with the sales of 1862, showing a diminution of 



CoDB OP Civil Pkoceddrb. 



881 



sales and profits during the latter year. The point of 
the objection was, that the defendants could not claim 
for H loss of profits. As a general rule, loss of profits 
cannot enter into the estimate of damages, either in 
actions founded on tort, or on contracts. But the rule 
has its well understood exceptions in both cases. To 
say that the defendants here cannot claim for a loss of 
profits involved in a diminution of business, caused by 
the plaintiflTs neglect, is to claim impunity for the neg- 
lect. Loss of profits, as an element of damage here, is 
not remote, but the natural and first efiect of the neg- 
lect alleged. — Sedg. on Dam., p. 72; Masterton vs. The 
Mayor of Brooklyn, 7 Hill, p. 62; Lawrence vs. Ward- 
well, 6 Barb., S. C, p. 423; Brackett vs. McNair, 14 
John., p. 170; Sedg., pp. 337, 338. 

** But it is said that the testimony was properly ex- 
cluded, for the reason that the defendants had fully 
paid the plaintifiT for his services for all the months 
prior to the month of October, 1862, and that the 
defendants therefore had no right to offer proof as to 
the plaintifiT's conduct except during that month. No 
authorities are cited in support of this position, nor is 
any principle referred to supporting it. The obligation 
to serve was entire, the plaintiff engaging for five years, 
at a round salary of three thousand dollars for the first 
three years, and of three thousand six hundred dollars 
for the last two. True, the salary was to be paid in 
monthly installments; but .still, the obligation of the 
defendant was to serve for five years, and it has no more 
reference to the months than it has to the weeks or 
days that go Co make up the full period. If the entire 
salary had been made payable at the end of the service, 
and the defendants had then paid it, the payment would 
nut have precluded them from bringing an action for 
plaintitf's neglect. — Barber vs. Rose, 6 Hill., p. 76. 
And if the plaintiff herein had recovered each one of 
the monthly installments by action as fast as they 
accrued, and the defendants had refrained from inter- 
posing Any counter claim for a breach by the plaintiff 
of his contract, they would still have had the right to 
proceed by action for their damages. On these grounds, 
we consider that the defendants were at liberty to 
charge the defendants with neglect to the full extent of 
their offer. The contrary view must go on the ground 
that the defendants, by paying a monthly installment 
and permitting the plaintiff to remain in their service 
thereafter, waived the neglect that accrued during the 
month for which the payment was made. But an 
omission to assert a cross claim when a demand is pre- 



882 Code op Civil Procedure. 



sentcd for payment does not involve a waiver of the 
counter claim; nor is a mere omission to discharge an 
unfaithful ap^ent or servant before his time of service 
has expired, to bo treated as a releaf^e of his transgres- 
sions. The employer in such case may dischar^fe the 
servant as matter of right, but the servant cannot claim 
that the emijloj'er j-hould either discharge him or ab- 
solve him on any known principles of fair dealing, for 
the servant always has it i<. his power to protect his 
own interests by simply doing his duty. Again, it 
is urged that th • evidence was properly excluded for 
the rea.«^on that the cross claim was for unliquidated 
damages. This objection is not well taken. Counter 
claims are what the Practice Act has made them to be. 
"Where the principal and cross claim are based upon 
the same contract, both may be considered in the same 
action, however the damages may be unliquidated; and 
if the jury find a balance in favor of the defendant, he 
may have judgment and execution therefor (Pattison 
vs. Richards, 22 Barb., p. 146; Glason vs. Mom, 2 
Ducr, p. 6^9), unless the plaintiff came to the principal 
claim by assignment. "VVe furthermore consider that 
the counter claim of the defendants may be opposed to 
the sum total of the live items of claim set up in the 
complaint. Tlie sale of the goods, the promise to serve, 
and the correlative undertakings of the defendants, are 
but parts of one contract. That contract is * the trans- 
action set forth in the complaint as the foundation of 
the plaintiff's claim,* and the counter claim pleaded 
^arises out of that transaction,* and is * connected 
with the subject of the action.' — Spencer vs. Babcock, 
22 Barb., p. 326. But the rule of the Practice Act is 
broader still, and allows the defendants to oppose their 
cImiim !f »i- dama to all the plaintiff's items. The 
plaintiff's * action arises out of contract,' not only aa 
to the two larger items, but as to the three smaller onea 
also. The counter claim likewise 'arises upon con- 
tract,' ^'a H it * existed at the commencement of the 
action.' The Practice Act enumei ates these tests only, 
and all others are excluded by intendment. — Signot vs. 
Redding, 4 E. D. Smith, p. 162." 

2. Whkn Skt-off is allowed, and what Set- 
off MAY CONSIST OF. — A decree, rendered in an action 
on a bond, and to foreclose a mortgage as security 
therefor, which, after reciting the amount found due on 
the bond, directed that the mortgaged premises be sold, 
and out of Uie proceeds the costs and the amount due 
on the bond and accruing interest be paid, and the 
Sheriff pay such surplus into Court, but that if the 



Code of Civil Prookdurb. 888 

proceeds were insufficient to pay the debt, interests, and 
costs, the Sheriff should report the amount of such defi- 
ciency or balance, and the plaintiff have execution 
against the defendants for the deficiency, merges the 
original debt in such judgment, so far as to make it a 
certain and liquidated demand, existing at the date 
■when the amount of balance was ascertained by the 
Sheriff, sufficient for a foundation of a right of action 
as set-off. A cestui que tnst who is insolvent cannot 
in equity enforce and collect through his trustee a judg- 
ment against a party who holds a just and valid dumand 
against the cestui que trust, which he has no means of 
enforcing or collecting if a set-off is denied; and it is 
unnecessary that the demand sought to be used as a 
set-off should be in the form of a personal judgment. — 
Hobbs vs. Duff, 23 Cal., p. 596. The next position is, 
that the rules of set-off are the same in equity as at 
law. It is true that Courts of law and equity follow 
the same general doctrines on the subject of set-off; 
but where some equity intervenes, independent of the 
fiict of mutual unconnected debts, Courts of equity 
will take jurisdiction and determine the matter upon 
the principles of natural equity. And when the law 
could not give a proper remedy, as in case of the insol- 
vency of one of the parties, equity will afford relief. — 
Barb, on Set-off, p. 190; Lindsay vs. Jackson, 2 Paige, 
p. 581. The demands in this case are judgments, and 
the aid of a Court of equity is invoked because the 
defendants in one of the judgments are insolvent, and 
the plaintiff in the other is not the real party in inter- 
est, but a trustee for the insolvent defendants in the 
other judgments. Each of these facts form a ground 
for applying to a Court of equity, and entitles the plain- 
tiffs to equitable relief. On a complaint filed to set-off 
one judgment or decree against another, the jurisdic- 
tion of a Court of chancery is more extensive than that 
of common law Courts. In equity, a set-off in such 
cases is a matter of right and not of discretion, and it 
depends not upon the statutes of set-off, but upon the 
equitable jurisdiction of the Court over its suitors. — 
Barb, on Set-off, p. 194. And the set-off will be al- 
lowed as between the real parties in interest, regardless of 
a nominal party. — O'Connor vs. Murphy, 1 H. Black., 
p. 657. A person who holds a claim as a trustee cannot « 

have it set off against a demand due from him in his 
own right. — FaiP vs. Mclver, 16 East., p. 180. And 
upon the same principle, we think it clear that a set-off 
should be made in equity as between the real parties in 
interest, even though one of the judgment? is in the 



884 Code of Civil Procedure. 

name of a trustee, who holds for the use and benefit 
of such real parties. — Wolf vs. Beales, 6 S. & K., p. 
242; Barb, on Sot-off, pp. 16, 71-73. In other words, 
the Court will decree a set-off as between the real 
owners or persons beneficially interested in the seyeral 
demands. — Russell vs. Conway, 11 Cal., p. 93. An- 
other position taken by the appellants is, that Fisher 
should have pleaded the balance due on the judgment 
. of foreclosure, as a set-off against the damages in the 
action brought by Wm. R. Duff against him and the 
Knoxes for a specific performance; and not having 
done so, the plaintiffs claiming under him are estopped 
or barred from maintaining this action. If he had so 
pleaded it in that suit, it would probably have been 
held that the Court could not entertain the defense or 
allow the set-off in that action, on the same grounds 
that it was ruled out in the subsequent action of Duff 
vs. Hobbs, 19 Cal., p. 646. But, independent of that, 
it is clear that a party does not lose his right to bring a 
 separate action for a demand which he might have 
pleaded as a set-off, but neglected to do. — (Barb, on 
Set-off, p. 21;) Hobbs vs. Duff, 23 Cal., p. 628. 

3. Offsets — What may be. — Action on an appeal 
bond, in which defendants claim the right to offset 
the balance of a decree in a foreclosure suit, which they^ 
have purchased and now hold against D. and B., and 
eleven other defendants in that suit, upon the ground 
that D. and R. are the parties beneficially interested in 
the claim in suit in this action, and that they and the 
other eleven defendants in the decree sought to be off- 
set are insolvent. It was decided that the set-off cannot 
be allowed, as well because of the provisions of this 
section, whiah requires a counter claim to be between 
parties to the record, between whom a several judg- 
ment might be had in the action, as of the provit^ions 
of Sees. 626 and 666, i)ost, which would require a 
judgment for the excess to be given against the plain- 
tiff, although, as against him, it is not claimed that 
defendants have any demand. The matter set up in 
the answer is not a defense, legal or equitable, in any 
other sense than as being purely an offset, and, there- 
fore, such matter cannot be relied on as an equitable 
defense independent of, and beyond the right of, offset 
., given \)y the Code. — Duff vs. Hobbs, 19 Cal., p. 646, 

commenting on, and in some particulars disapproving, 
Naglee vs. Palmer,*7 Cal., p. 54.S, and Russell vs. 
Conway, 11 Cal., p. 93, and citing as authority the 
cases of Wheeler vs. Raymond, 5 Cowen, p. 231; 
Warner vs. Barker, 3 Wend., p. 400; Spencer ts- 



Code of Civil Procbdurb. 386 

Babcock, 22 Barb., p. 826; Ferreira vs. Depew, 4 
Abbott's Pr. R., p. 131. 

4. What Constitutes an Offset.— A claim to 
constitute a set-off must be such that the party plead- 
ing it could obtain a several judgment upon it; and a 
joint debt cannot be made a set-off against a several 
one. To justify the allowance of a set-off of joint debt 
due from plaintiff, and another against the individual 
claim of plaintiff, upon equitable grounds, beside show- 
ing that the joint debtors owe a considerable amount^ 
and that their property is incumbered by judgments, 
mortgages, and attachments, it must also be shown* 
that they are insolvent, or that the defendants are in 
danger of losing their demand. — Howard vs. Shores, 
20 Cal., p. 277. 

5. Damages for breach of Contract as a 
Counter Claim. — ^If plaintiff asks in his complaint 
for damages for the breach on the part of the defendant 
of a written contract between the parties, the defend- 
ant may interpose in his answer a counter claim for 
damages for a breach of the contract by plaintiffs. — 
Dennis vs. Belt, :.0 Cal., p. 247. 

6. Counter Claim Defined. — A counter claim is 
a cause of action in favor of the defendant, upon which 
he might have sued the plaintiff and obtained affirm- 
ative relief, in a separate action. — Belleau vs. Thomp- 
son et al., Oct Term, 1867. 

7. A Joint Claim by two persons must not be 
set up as a Counter Claim by one Defendant, 
but he may amend and aver that the whole interest 
therein had been transferred to him. — Steams .vs. 
Martin, 4 Cal., p. 229; but if the legal and equitable 
liabilities on claims of n^oney become vested in or 
may be urged against one, they may be set off against 
separate demands, and vice versa. — Russell vs. Con- 
way, 11 Cal., p. 101; Collins vs. Butler, 14 CaU, p. 228. 

8. What is necessary to constitute Set-off at 
law. — To authorize a set-off at law, the debts must be 
between the parties in their own rights, and must be 
of the same kind and quality, and be clearly ascer- 
tained or liquidated; they must be certain and deter- 
mined debts. — Naglee vs. Palmer, 7 Cal., p. 543; see 
this doubted, however, in Duff vs. Hobbs, 19 Cal., p. 
646. 

9. What may be set up as Counter Claim, etc., 
in suits on Contracts. — Plaintiff sues for balance 
due on a contract for erecting a building, and a small 



49 — ^VoL. I. 



886 C)oDB OP Civil Procedure. 

sum for extra work. Defendant seeks to offset a claim 
for two and one third months* rent lost by him, be- 
cause of the neglect of plainiiff to finish the building 
within the time gpecifled m ;the contract, defendant 
having at the date of the contract leased the building 
to responsible tenants, the lease to take effect from the 
time of its completion, as required under the contract; 
but it was decided that defendant cannot of&et his 
rents, because the circumstances show that the con- 
tract was modiHed by the parties as to the time for the 
completion of the building. — McGinloy vs. Hardy, 18 
Cal., p. 115. 

10. COPARTXKRSHIP CLAIMS, DeBT8, ETC., AS SeT- 

OFrs, WHEN. — A party may purchase cross demands 
against a partnership, and set them up as a defense to 
a debt due by him to a partnership. — Naglee vs. Min- 
turn, 8 Cal., p. 540; Marye vs. Jones, 9 Cal., p. 335. 
. In a suit to recover damages for breach of a covenant 

to indemnify plaintiff against liabilities, the defendant 
cannot set up as a counter claim demands which were 
matters of partnership between the parties. — Haskell 
vs. Moore, 29 Cal., p. 437. When partners are sued as 
factors their claim for disbursements, commissions, etc., 
need not be stated in their answer as set-offs. — Lubert 
vs. Chauviteau, 3 Cal., p. 463. 

11. Equity will ENroRCK Set-off, when.— "When 
the parties have mutual demands against each other 
which are so situated that it is impossible for the party 
claiming a set-off to obtain satisfaction of his claim by 
an ordinary suit at law or in equity, then upon the filing 
of a bill a Court of equity will enforce the equitable set- 
off. — Russell vs. Conway, 11 Cal., p. 93; see, also, Col- 
lins vs. Butler, 14 Cal., p. 227; Hobbs vs. Duff, 23 Cal., 
p. 696. 

12. Judgments, when Set-offs, and how.— 
"When a person seeks to set off judgments in different 
Courts he must go into the Court in which the judg- 
ment against himself was recovered. — Russell vs. Con- 
way, 11 Cal., p. 101. See, also, as to judgments as set- 
offs, Beckman vs. Manlove, 18 Cal., p. 388; Collins vs. 
Butler, 14 Cal., p. 227; Poi-ter vs. Liscom, 22 Cal., p. 
480; and particularly, Hobbs vs. Duff, 23 Cal., p. 596. 

13. Breach of Warranty as Counter Claim 
BY w^AY OF Recoupment.— See Earl vs. Bull, 15 Cal., 
p. 425. 

14. Set-offs should he Specially Pleaded.— 
See Hicks vs. Green, 9 Cal., p. 75 j Wallace vs. Bear 



Code of Civil Procbdurk. 



387 



River Water ftnd Mininjif Co., 18 Cal., p. 461; Bernard 

TB. Mullut, 1 Gal., p. 368; Cole vs. Swanston, 1 Cal., • 

p. 51. 

439. If the defendant omit to set up a counter y^eu 

^ ^ defendant 

claim in the cases mentioned in the first subdivision „" j.oJ;Jter* 
of the last section, neither he nor his assignee can ®^*"^ 
afterwards maintain an action against the plaintiiF 
therefor. 



440. (§ 48.) When cross demands have existed 
between persons, under such circumstances that, if one 
had brought an action against the other, a counter 
claim could have been set up, neither can be deprived 
of the benefit thereof by the assignment or death of 
the other; but the two demands must be deemed com- 
pensated so far as they equal each other. But a claim 
existing in favor of the maker of a negotiable instru- 
ment and against a holder after maturity, intermediate 
between the payee and the last holder, is not a cross 
demand. 

Note. — Vinton vs. Crowe, 4 Cal., p. 309. The last 
clause is added to the section at the instance of Justice 
"Wallace. Although a party may set up an equitable 
defense to an actiorrat law, his remedy is not confined 
to that proceeding. He may let the judgment go at 
law, and file his bill in equity for relief. — Lorraine vs. 
Long, 6 Cal. p. 453. 

441. (§ 49.) The defendant may set forth by 
answer as many defenses and counter claims as he may 
have. They must be separately stated, and the sev- 
eral defenses must refer to the causes of action which 
they are intended to ansvtrer, in a manner by which 
they may be intelligibly distinguished. The defend- 
ant may also answer one or more of the several causes 
of action stated in the complaint and demur to the 
residue. 

Note. — Inconsistent Defenses. — In Bell vs. 
Brown, 22 Cal., p. 679, the Court say: "The question of 
inconsistent defenses and hypothetical pleadings under 
the Code has been adjudicated by the Courts of other 
States in numerous cases, and the right of a defendant 



Counter 
claim not 
barred by 
death or 
asi^iKn- 
ment. 



Answer 

may 

contain 

several 

ffroundfl of 

defense. 



Defendant 
may 
answer 
part and 
demur to 
part of 
complaint. 



^ 



1^' 



388 Code op Civil Procedure. 

to set forth as many defenses as he thinks proper is 
fully recognized, and also that pleading one defense 
cannot he held a "waiver of another in the Bame 
answer, even though inconsistent. In Sweet vs. 
Tuttle, 4 Kern., p. 465, May hew ve. Kobinson, 10 How- 
Pr., p. 162, and Bridge vs. Payson, 6 Sandf., p. 210, a 
general denial and plea of nonjoinder of defendants 
were united and held good. So in Gardner vs. Clark, 
21 N. Y., p. 399, where a plea of performance and a 
former action pending were joined. So in Doran vs. 
Binsmore, 20 How. Pr., p. 503, where a general denial 
was coupled with a plea of payment. So in Mott vs. 
Burnett, 2 E. D. t^mith, p. 52, it was held that the 
defendant might deny making the note sued on, allege 
^. a set-off, and that one of the makers of the note had 

« been discharged by the holder. In an action to recover 

personal property it was held the defendant might 

^.^ answer by a general denial and set up a justification of 

^ the taking. — Harkley vs. Ogmun, 10 How. Pr., p. 44. 

^^ In slander, that he may deny the charge and also jus- 

j^ tify. — Ormsby vs. Douglass, 5 Duer, p. 665; Butler vs. 

Wentworth, 17 Barb., p. 649; 9 How. Pr., p. 282. So, 
also, that pleas which were not inconsistent under the 
former practice are good as answers under the Code. — 
Lansing vs. Parker, 9 How. Pr., p. 288. Held, too, 
that a defendant should never be required to elect 
between a denial of a material allegation of the com- 
plaint and new matter constituting a defense. — HoUen- 
beck vs. Clow, ^ How. Pr., p. 289. And that it was 
not necessary that the several defenses in an answer 
should be consistent with each other. — Stiles vs. Corn- 
stock, 9 How. Pp., p. 48. Also, that denials of allega- 
tions in the complaint may be coupled with a defense 
of the Statute of Limitations. — Ostrum vs. Bixby, 9 
How. Pr., p. 57. Held, too, that a defense might be 
hypothetically predicate upon a fact alleged in the 
complaint, as an answer after denying that the plaintiff 
was the owner of the note sued on, averred that if the 
^ plaintiff is the owner, he took it with notice of a failure 

of the consideration. — Brown vs. Ryckman, 12 How. 
Pr., p. 313. Or if the defendants, by their agents, 
ever issued the certificate of deposit sued on, the same 
has been paid. — Doran vs. Dinsmore, 20 How. Pr., p. 
503. Also held that an implied admission in one of 
the defenses set up in an answer will not conclude or 
. estop the defendant from proving another defense set 
up in the same answer, as each defense in an answer 
stands by itself, and an admission in one is not availa- 
ble against the others. — Swift vs. Elingsley, 24 Barb. 



Code of Civil Procbdurb. 389 

S. C, p. 541. In the case of K^chum vs. Zerira, 
1 E. D. Smiftirp. 3!*, ^ni luesftSiHfti^^JVMy^i 
examined, and the right of a defendant to file incon- 
sistent defenses and hypothetical pleadings, under 
proper circumstances, was fully maintained. In the 
case of Youngs vs. Bell, 4 Cal., p. 201, the right of a 
defendant to set up several distinct defenses, and to 
rely upon all of them in order to put the plaintiff to 
his proof, was sustained, and it was held that he was 
not concluded by one plea so long as he had others 
which went to the whole action. — Sec, also, Kidd vs. 
Laird, 15 Cal., p. 182. We are aware that there are 
several decisions, both in our own and other Courts, 
which have laid down contrary views, but the weight 
of principle and authority is in favor of the rule that 
under proper circumstances a defendant may set up 
several defenses in his answer, inconsistent with each 
other, though each defense must be consistent with 
itself. The cases decided by the Court of Appeals in 
the State of New York, and reported in 4 Kernan, p. 
465, and 21 N. Y., p. 399, seem to have settled the rule 
in that State. The view we take harmonizes the new 
Code with the well established principle of the old 
By stem* of practice. Works on pleadings are full of 
precedents and forms recognizing fully the right of a 
defendant to file several pleas, which, though they 
might be inconsistent with each other, wore required 
each to be consistent with itself. — Bell vs. Brown, 22 
Cal., p. 679; see, also, Klinck vs. iJohen, 13 Cal., p. 
623; Uridias vs, Morrell, 28 Cal., p. 31; Wilson vs. 
Cleaveland, 30 Cal., p. 192; Racouillat vs. Bene, 32 
Cal., p. 450." 

2. Generally. — See Nudd vs. Thompson, 34 Cal., 
p. 46; Carpcntier vs. Small, 35 Cal., p. 347; Racouillat 
vs. Bene, 32 Cal., p. 450. ' 




CHAPTER V. 

DEMURRER TO ANSWER. 

SECTION 443. When plaintiff may demur to answer. 
444. Grounds of demurrer. 



443. (§ 50.) The plaintiff may, within the same JJ|^2?iff 
len^h of time after service of the answer as the de- S «mwot" 




390 Code of Civil Prooedurb. 

id tei#iMEej^fter semce of summona, 
iwer TO^thedefendant. 

Grounds of 444. The demurrer may be taken upon one or 

demurrer. 

more of the following grounds: 

1. That several causes of counter claim have been 
improperly joined; 

2. That the answer does not state facts sufficient to 
constitute a defense or counter claim; 

3. That the answer is ambiguous, unintelligible, or 
uncertain. 

Note. — When inconsistent defenses are set up, the 
defect must be reached by motion to strike out one of 
the defenses. If a motion to strike out will not reach 
or cure the defect, then the objection may be reached 
by demurrer; and if no objection be taken to the 
answer on this ground, defendant on the trial may rely 
^ on any of his defenses, as under the old system. — Klink 

vs. Cohen, 13 Cal., p. 023, affirmed in Uridias vs. Mor- 
rill, 25 Cal., p. 37; see, also, 4 Sand., S. C, p. 680, and 
cases cited in Van Santvord*s, Pleadings, p. 287. But 
a demurrer cannot be stricken out as a sham or irre- 
levant defense; it can only be disposed of in the usual 
way. — Larco vs. Casaneuava, 30 Cal., p. 560. Where 
the plaintiff claims that all the denials are bad, if the 
answer contains no new matter, he may test the suffi- 
cfcncy of the denials by a motion for judgment upon 
the pleadings, or by motion to strike out the answer on 
the ground that it is sham and irrelevant. If some of 
the denials are good, and the others bad, he may move 
to strike out the latter. Answers consisting of denialst 
which do not explicitly traverse the material allegatioDS 
^ - ^V V ^ X* ^^ ^^® complaint, we ht^ld so fer sham and irrelevant 

^^* ** r V \ * * > *nritkiAith8^e>»ning of U»Q^^tuJp.-HSaj^vs. Winter, 

84 Cal., p. 161; see, also, People vs. McCumber, 18 
N. Y., p. 315. Though certain defenses, by way of 
set-off, are pleaded in the answer in a very informal 
and inartificial manner, yet, if the facts showing that 
they coni^titute valid claims against the plaintiff are 
sufficiently stated, the defense ought not to be struck 
out. — Wallace vs. Bear River Water and Mining Cow 
18 Cal., p. 461. An answer without a verification to a 
complaint, dul j' verified, may be stricken out on motion, 
and judgment asked, as upon a default. — Drum va. 
Whiting, 9 Cal., p. 422. The motion in this case to 
strike out the answers, because denying on is/ormatioB 



■T" 



CoDB OF Civil Procedoeh. 



391 



and belief, was properly overruled. — Comerford vs. 
Dupuy, 17 Cal., p. 308. A verified answer, which in^ 
any part contains a distinct denial of a fact material to 
plaintiff's recovery, cannot, no matter how defective it 
may be, be treated as a nullity, so as to entitle plaintiff 
to judgment on the pleadings.— Ghirardelli vs. Mc- 
Dermott, 22 Cal., p. 539. When plaintiff moves on 
affidavit to strike out a defense as ** sham," the defend- 
ant can defeat the motion by making affidavit that his 
defense is made in good faith. — Gostorfs vs. Taaffe, 
McCahill & Co., 18 Cal., p. 385; Wedderspoon vs. 
Rogers, 32 Cal., p. 569, and cases there cited. Inability 
of counsel to obtain defendant's verification in time 
cannot avail in resisting a motion to strike out, and for 
judgment after the answer is filed. — Drum vs. "Whiting, 
9 Cal., p. 422. If an answer is filed, raising an issue, 
and a trial is had, and witnesses are sworn and ex- 
amined, and the Court takes the case into considera- 
tion, it cannot then strike out the answer of the 
defendant and enter his default. — Abbott vs. Douglass, 
28 Cal., p. 295. For what have been held to be sham 
and irrelevant defenses — see McDonald vs. B. K. & A. 
W. M. Co., 15 Cal., p. 145; Weimer vs. Lowery, 11 
Cal., p., 104; Bates vs. S. N. L. W. Mining Co., 18 
Cal., p. 171. Defendants \Vere sued on a note. The 
complaint was not verified, but set out the note. De- 
fendants pleaded payment. Plaintiff, on affidavits 
that the plea was false and pleaded in bad faith, 
moved to strike out the answer, and for judgment, 
which was granted. The ruling of the Court was 
right. '' Sham " answers and defenses are such as are 
good in form, but false in fact, and pleaded in bad 
fJEiith; and that such answers, when consisting of 
affirmative defenses, should be stricken out. — Gostorfs 
vs. Taaffe, McCahill & Co., 18 Cal., p. 885. 



CHAPTER VI. 



"VTIRIFICATION OF PLEADINGS. 

SxCTlOK 446. Verification of pleadings. 

447. Copy of written instrument contained in complaint ad- 

mitted, unless answer is verified. 

448. When defense is founded on written instrument set out 

in answer, its execution admitted, unless denied by 
plaintiff under oath, 

449. Bxceptions to rules prescribed by two preceding sec- 

tions. 



392 Code of Civil Procedure. 

Vorifica- 446. (§§ 51, 52, 55.) Every pleading must be sub- 

piMdinga. scribed by the party or bis attorney; and when the 
complaint is verified, or when the State, or any officer 
of the State, in bis official capacity, is plaintiff, the 
answer must be verified, unless an admission of the 
truth of the complaint might subject the party to a 
criminal prosecution, or unless an officer of the State, 
in his official capacity, is defendant. In all cases of a 
verification of a pleading, the affidavit of the party 
must state that the same is true ot his own knowledge, 
except as to the matters which are therein stated on 
his information or belief, and as to those matters, 
that he believes it to be true; and where a pleading is 
verified, it must be by the affidavit of a party, unless 
the parties are absent from the county where the 
attorney resides, or from some cause unable to verify 
it, or the facts are within the knowledge of his attorney 
or other person verifying the same. When the plead- 
ing is verified by the attorney, or any other person 
except one of the parties, he must set forth in the affi- 
davit the reasons why it is not made by one of the 
parties. When a corporation is a party, the verifica- 
tion may be made by any officer thereof. 

Note. — The provisions of Sec. 2 of an Act relatin^^ 
to pleadings in behalf of the State or officers thereof^ 
have been carried into the preceding section. — Stats. 
1864, p. 261. 

1. What is a Sufficient Verification.— 
Where, in ^ectment, the verification to the complaint, 
made by one of the plaintiffs, is that the forei^ing 
complaint is true of his own knowledge, except as to 
the matters therein stated on the information and be 
lief of the plaintiffs, and as to the matters he believefl 
it to be true, the verification, though it does not 
follow the precise form of the statute, yet is sfifficient, 
although the person making the oath does not state 
that he has I'ead the complaint, or heard the complaint 
read, and knows the contents thereof. Copies of the* 
pleadings and proceedings in an action in the United 
States Circuit Court, which were attached to an answer 
as exhibits, need no further verification than what 



J 



Code of Civil Procedure. 898 

arises from the averment in the answer, that they are 
such copies; no distinct verification of them is requi- 
site; wore it otherwise, the certificate of the United 
States Circuit Court Clerk is suflSicient.— Ely vs. Fris- 
bie, 17 Cal., p. 250. If the pleading does not contain 
a statement of any matter on information and belief, ' 
there need be no expression of belief in the affidavit as 
to any such matter. If he avers matters positively, 
the verification will be sufficient if his affidavit states 
that the pleading is true of his own knowledge; if he 
aver matter " upon information and belief," or "upon 
information or belief," the verification will be sufficient 
if his affidavit states that as to the matters thus averred 
' he believes the pleading to be true. The mere observ- 
ance of the precise letter of the statute is not required. 
It was not necessary that the verification should have 
been made by both of the plaintiffs. The affidavit of 
one of them was sufficient. — Patterson vs. Ely, 19 Cal., 
p. 28. Attorney of plaintiff being a Notary Public, 
may attest the vyrification of the complaint. — Kuhlaad 
vs. Sedgwick, 17 Cal., p. 123. 

2. What is accomplished by VERiyicATioN — 
Objections to Verification w^hen made, etc. — 
By verification of the complaint, the plaintiff caa re- 
quire a sworn denial, and thus prevent the defendant 
from interposing a general denial in suits on promis- 
sory notes or bills of exchange. — Brooks vs. Chilton, 6 
Cal., p. 640. Objection to the want of verification of a 
complaint, where the same is required by the Code, 
must be taken either before answer or with answer. 
The filing of an answer is a waiver of the objection. — 
Greenfield vs. Steamer Gunnell, 6 Cal., p. 69. An 
attorney in fact, who is not an attorney at law, cannot 
sign his name to a complaint for his principal as 
"plaintift's attorney," and an action so attempted to be 
commenced is void, as began without authority by an 
entire stranger to the plaintiff. — Dixey vs. Pollack, 8 
Cal., p. 570; see Wilson vs. Cleaveland, 30 Cal., p. 
192. An answer to a verified complaint must be veri- 
fied, or it will be stricken out on motion, and an appli- 
cation for a judgment as upon default may be made at 
the same time; but the answer need not be verified 

when the defendant would be excused from testifying y 

as a witness to the truth of any matter denied by such 1^ 

answer. — Drum v. Whiting, 9 Cal., p. 422. 1^ 

3. At what times Verification may be mads.— 
To a complaint verified, the defendant filed a copy of 



50 — ^VoL. I. 



'4* 



V 






894 Code of Civil Procedueb, 

the original verified answer by mistake; depositions 
were taken under the pleading, and Ruhsequently went 
to trial. After the close of the plaintiff's evidence, his 
counsel then for the first time brought the mistake to 
the notice of the Court by moving for judgment by 
default. Held: that the Court should even then have 
allowed the defendant to have verified his answer.— 
Arrington vs. Tupper, 10 Cal., p. 464; see, also, Latti- 
mer vs. Ryan, 20 Cal., p. 628. When the complaint is 
verified, it is no error to allow the defendant to verify 
his answer before trial, unless such would act as a sur- 
prise to the plaintiff. — ^Angier vs. Masterson, 6 Cal., 
p. 61. 

Copy of 447. (§ 53.) When an action is brought upon a 

written , , , 

inrtramMit wTitteu instrument, and the complaint contains a copy 
oompiaint ^^ ®^^^ instrument, or a copy is annexed thereto, the 
admitted, genuineness and due execution of such instrument are 
w5SL" deemed admitted, unless the answer denying the same 
be verified. 

Note. — The genuineness and due execution of a note, 
a copy of which is incorporated in the complaint, is 
admitted, if the answer be not verified. — Horn vs. 
Volcano W. Co., 13 Cal., p. 62; Kinney vs. Osborne, 
14 Cal., p. 113; see, also, Corcoran vs. Ball, 32 Cal., p. 
83; Burnett vs. Stearns, 33 CaL, p. 473. And if a copy 
of a bond bo set out in the complaint, an answer deny- 
ing its execution must be verified, or else the execution 
is deemed admitted. — Sacramento Co. vs. Bird, 31 Cal., 
p. 66. In a suit brought on against the maker of a prom- 
issory note, by a special indorsee, the plain tifif must prove 
the genuineness of the indorsement, although the defend- 
ant has not denied the same under oath. — Grogan vs. 
Buckle, 1 Cal., p. 158; citing, also, Hardman vs. Cham- 
berlain, Norris' Iowa Bep., p. 104; see, also. Youngs 
vs. Bell, 4 Cal., p. 201. It is clear that this section does 
not extend to any other parties than those who are • 
alleged to have signed the instrument. Where an 
instrument is alleged in the complaint to have been 
executed by the intestate, it is not necessary that his 
defense is administrator should deny the signature of the intestate 

founded on on oath. It must be proved.— Heath vs. Lent, 1 Oal., 

instniment p* 410. 

let out in ^ 

execuUon 448. (§ 54.) When the defense to an action is 

admitted, ^"^ \ 

deid^ b founded on a wntten instrument, and a copy thereof is 
S^Sr oath, contained in the answer, or is annexed thereto, the 



Code of Civil Procedure. 395 

genuineness and due execution of such instrument are 
deemed admitted, unless the plaintift* file with the 
Clerk, five days before the commencement of the 
term at which the action is to be tried, an affidavit 
denying the same. 

Note.— See Ely vs. Prisbie, 17 Cal., p. 250, cited in 
Note No. If Sec. 446, ante. 

449. (§ 54.) But the execution of the instruments Exoeptiom 

' to rulea 

mentioned in the two preceding sections, is not deemed J'^^^** 
admitted by a failure to deny the same under oath, if ^l^^ 
the party desiring to controvert the same, is, upon 
demand, refused an inspection of the original. 



CHAPTER Vn. 



GENERAL RULES OF PLEADING. 

SicnoN 452. Pleadings to be liberally construed. 

453. Sham and irrelevant answers, etc., maybe stricken out. 

454. How to state an account in pleadings. 

455. Description of real property in a pleading. 

456. Judgments, how pleaded. 

457. Conditions precedent, how to be pleaded. 

458. Statute of Limitations, how pleaded. 

459. Private statutes, how pleaded. 

460. Libel and slander, how stated in complaint. Not neces- 

sary to allege or prove special damages. 

461. Answer in such cases. 

462. Allegations not denied, when to be deemed true. When 

to be deemed controverted. 

463. A material allegation defined. 

464. Supplemental complaint and answer. 

465. Pleadings subsequent to complaint must be filed and 

served. 

452. (§ 70.) In the construction of a pleading, for Pleadings 
the purpose of determining its eftect, its allegations iiberaUy 
'must be liberally construed, with a view to substantial 
justice between the parties. 

Note. — All pleading is taken most strongly against 
the pleader (Elashaw vs. Kashaw, S Gal., p. 822; Moore 



896 Code of Civil Phooedtjrb. 

vs. Besse, 30 Cal., p. 570; Green v&. Covillaud, 10 Cal., 
p. 317); but this rule does not apply where the pleader 
confesses his pleading is bad, and that it imperfectly 
and ambiguously expresses his meaning and intent, and 
therefore appeals to the mercy of the Court to be 
allowed to amend it in furtherance of jui^tice, k> as to 
present his case more clearly. — Nevadjji County and 
Sacramento County Canal Company vs. Kidd, 28 Cal., 
p. 684; see, also, Felch vs. Beaudry, 40 Cal., p. 440. 
Nor does the rule apply when it would make the plead- 
ing absurd, if it will bear any other construction. — 
Harshull vs. Shafler, 82 Cal., p. 170. In constiuing a 
pleading, an isolated sentence should not be taken sep- 
aiated fiom its context, and the effect of an indepen- 
dent averment given to it, unless fiom the wholeplead- 
ing such appears to have been the plain intent. — Farish 
•vs. Coon, 40 Cal., p. 33. By substantial jubtice is 
meant substantial legal justice, to be asceitained and 
detei mined by fixed rules and positive statutes, and not 
the abstract and varying notions of equity which may 
be entertained by each individual. — Stevens vs. Boss, 1 
Cal., p. 98; see, also, Rowe vs. Chandler, 1 Cal,, p- 167. 

Sham and 463. (§§ 50, 67.) Sham and irrelevant answers, 

irrelevant -i-t -itt . -i. 

answera, and irrelevant and redundant matter inserted m a 

etc, may 

JSt!'"^*'^" pleading, may be stricken out, upon such terms as the 
Court may, in its discretion, impose. 

Note.— 1. Sham Answers.— See particularly Piercy 
vs. Sabin, 10 Cal., p. 27, commented on in Kote No. 
42 to Sec. 437, ante. A sham answer, said the Court, 
in Piercy vs. Sabin, 10 Cal., p. 27, was one good in 
form but false in fact, and not pleaded in good faith. 
The same definition, substantially, was given by the 
Court of Appeals of New York in the case of the Peo- 
ple vs. McCumber, 18 N. Y., p. 315. It was suggested, 
however, that the power to strike out should be care- 
fully exercised, and not extended beyond its just limits. 
**It is a power,*' says the Court, '* simply to inquire 
whether there is, in fact, any question to be tried, and 
if there is not, but the defense is a plain fiction, to strike 
out the fictitious defense. When a defendant, on a mo- 
tion to strike out his defense as sham, supports it by an 
afi&davit, stating specially its general grounds, he can- 
not, as a general rule, be deprived of a trial in the 
ordinary mode; a case for striking out does not exist.*' 
"Whether the statute applies to any but aflirmativc de- 
fenses, it is unnecessary to determine; but there is no 



Code op Civil Procbdurb. 39T 

doubt that whore affirmative matter is falsely pleaded 

for the purpose of delay, it should be stricken out. If 

the defense, however, be bona fide, the affidavit of de- 

• fendant to that effect will be a sufficient answer to any 

attempt to strike it out. — Gastorfs vs. TaafiTe, 18 Cat., 
p. 3S7. When the plaintiff claims that all the denials 
are bad, if the answer contains no new matter, he may 
test the sufficiency of the denials by a motion for judj^- 
mont upon the pleadings, or by motion to strike out 
the answer, on the ground that it is sham. If some of 
the denials are deemed good and the others bad, he 
may more to strike out the latter. This course is 
authorized under this section. Answers consisting of 
denials which do not explicitly traverse the material 
allegations of the complaint, we hold to be so far sham 
and irrelevant, within the meaning of the statute. — 
The People vs. McCumbor, 18 N. Y., p. 315; Gay vs. 
Winter, 34 Gal., p. 161. 

2. Immaterial, Redundant, or Irrelevant 
Matter. — All redundant, immaterial, or irrelevant 
matter should be stricken out, — Bowen vs. Aubrey, 22 
Cal., p. 566; Guy vs. Washburn, 23 Cal., p. Ill; Wil- 
son vs. Cleaveland, 30 Cal., p. 192; Larco vs. Casa- 
neuava, 30 Cal., p. 561; Felch vs. Beaudry, 40 Cal., p. 
440. 

3. Frivolous Defense.— An answer by the payer 
of a note that the plaintiff is not the lawful owner or 
holder of the instrument sued on, when upon its face it 
runs to him, and which discloses no issuable fact in 
supiK)rt of such denial, is simply frivolous. — Felch vs. 
Betiudry, 40 Cal., p. 440. See further sections of this 
Code, relating to complaint, answer, and demurrer. 

454, (§ 56.) It is not necessary for a party to set How to 
forth in a pleading the items of an account therein account in 
alleged, but he must deliver to the adverse party, 
within five days after a demand thereof in writing, a 
copy of the account, or be precluded from giving evi- 
dence thereof The Court, or a Judge thereof, or a 
County Judge, may order a further account, when the 
<Hie delivered is too general, or is defective in any par- 
ticular. 

Note. — The objection that a bill of particulars is not 
properly verified by the oath of the party comes too 
late upon the trial. If the bill is not satisfactory to the 
defendant, either because it is defective in form or in 



S98 



Code of Civil Procedure. 



substance, or because it is not verified by the plaintiff, 
he should immediately return it, or move the Court for 
a further or amended bill. — Dennison vs. Smith, 1 Cal., 
p. 437; see, also, Providence Tool Company vs. Prade% 
82 Cal., p. 634; Coifner vs. Hutchinson, 17 Cal., p. 
280. In an action upon a note, defendant, in general 
terms, '^yithout items, set up an account for 'work and 
labor, and for money paid, etc. Plaintiff asked for a 
copy of the account, which was furnished by defendant. 
Plaintiff gave notice that he would move the Court 
**for a further account of particulars," etc.; and on 
hearing, the Court ordered the same, which defendant 
supplied. On the trial plaintiff ordered his note, and 
rested. Defendant offered evidence of the account set 
up in the answer, to which plaintiff objected, on the 
ground that "defendant had not furnished an addi- 
tional bill of particulars,*' and the Court ruled out the 
evidence. This was an erroneous ruling: first, because 
the order for a further account was defective, in not 
stating the particulars, in reference to which a further 
specification was required; and second, if the bill of 
particulars, delivered imder the order of the Court, was 
not satisfactory, and plaintiff intended to object to any 
evidence upon the subject, he should have obtained, 
previous to the trials an order excluding such evi- 
dence. Where a copy of the account sued on, or set 
forth in the answer, is called for under this section of 
the Code, the items of the account furnished must be 
stated with as much particularity as the nature of the 
case admits of; but the law does not require impossi- 
bilities; and if the party gives the items as definitely 
as he can, he does not forfeit his rights because of hia 
inability to comply with a further demand for particu- 
lars. — Conner vs. Hutchinson, 17 Cal., p. 280. Where 
the complaint set forth the bill of sale in its precise 
words, it was held not to be defective in the description 
of the quantity of the goods sold. A party must be 
presumed to know what was intended by his own 
account. — Cochran vs. Goodman, 3 Cal., p. 244. If, 
in an action to recover a certain amount due for legal 
services, the complaint is in general terms, and the 
defendant asks for and receives a bill of particulars, he 
can make no objection to admitting evidence under it 
Tompkins vs. Mahoney, 32 Cal., p. 231. 



Code of Civil Procedurb. 399 

J^^ ' (§ 58.) In an action for the recovery of real i>.oj^jy>ti«« 
^%^^% it must be described in the complaint with JXdLji" 
^\f ^^nainty as to enable an officer, upon execution, 

^^tify it. 

NoTK.—This section formerly was as follows: "In 
an action for the recovery of real property, such prop- 
erty shall be described with its metes and bounds in 
the complaint." Foreclosure suits were not controlled 
by this section (Emeric vs. Tarns, 6 Cal., p. 156); and 
under this section, as it then stood, it was held that a 
complaint describing land by a certain name was as 
good a descnption as one by metes and bounds, if it can 
be rendered sufficiently certain by evidence.— Castro vs. 
Gill, 5 Cal., p. 40; Stanley vs. Green, 12 Cal., p. 148; 
see, also, Doll vs. Fellets, 16 Cal., p. 432; Whitney vs. 
Buckmun, 19 Cal., p. 300; Paul vs. Silver, 16 Cal., p. 
73; Green vs. Palmer, 15 Cal., p. 411; Grady vs. Early, 
irCal., p. 108; Carpentier vs. Grant, 21 Cal., p. 140; 
Moss vs. Shear, 30 Cal., p. 468. The language of the 
section, as it now stands, seems to express the general 
intent of the decisions of our Supreme Court. For de- 
scription of real property, see Piercy vs. Crandall, 34 
Cal., p. 344. 

456. (§ 59.) In pleading a judgment or other Judj^ ^^^ 
determination of a Court, officer, or Board, it is not pioadit 
necessary to state the facts conferring jurisdiction, but 
such judgment or determination may be stated to have 
been duly given or made. If such allegation be con- 
troverted, the party pleading must establish on the 
trial the facts conferring jurisdiction. 

Note. — 1. Generally . — In this case the certificate 
states that A. W. Bradford is Surrogate of the City 
and County of New York, and acting Clerk of the 
Surrogate's Court; that he has compared the transcript 
of the papers with the original records in the matter 
of the estate of William Young, and finds the same to 
be correct, and a true copy of all the proceedings; and 
that the certificate is in due form of law— in testimony 
whereof he sets his hand and affixes his seal of office. 
"We do not see what more could be required to authen- 
ticate to us the records which the officer certifies. If 
the papers show upon their face the jurisdiction of the 
Court, it is not necessary that the complaint should 
aver this jurisdiction; and if it were, then the defect 



4*0 Code of Civil Procedubb. 

should have been noticed by demurrer, not by motion 
to exclude, or objcK^tion to the admissibility of the 
transcript. Hero it seems the Surrogate is Judge and. 
Clerk of the Court. This being so, it was only nec€»- 
, sary that the certificate phould state the main facto 

which are made necessary by the Acts of Congress to 
the authentication of the records of a Court which has 
both 'Judge and Clerk, — Low vs. Burroughs, 12 Cal., 
p. 188. In an action on a note, the answer alleged, 
tlie discharge in insolvency of defendant. Plaintiff 
demurred to the answer, on the ground that it did 
not allege that the note was described, set forth, and 
included in defendant's schedule. It was decided that 
under this section of the Code it was sufficient to allege 
in the answer that a judgment had been duly ren- 
dered, discharging defendant from the demand sued 
on; and that whether the demand was sufficiently de- 
scribed was matter of evidence, to be determined on 
the trial, by inspection of the record. — Hanscom vs. 
Tower, 17 Cal., p. 521. 

2. JuDGMK^'TS OF JUSTICES* CouRTS.— A person 
asserting a right under the judgment of a Justice 
must affirmatively show every fact necessary to confer 
such jurisdiction. — Swain & Marsh vs. Chase, 12 Cal., 
p. 283. 

3. Judgment ov a Probate Court. — Where a 
judgment of the Probate Court is pleaded it is unneces- 
sary to allege the facts conferring jurisdiction, but the 
judgment may be stated to have been duly rendered. 
Beans vs. Emanuelli, 36 Cal., p. 117. 

4. Judgment of a Board. — The words ** or Board*' 
are an addition to the old section. — See Himmelmaa 
vs. Danos, 35 Cal., p. 448. It was held that a com- 
plaint to recover an assessment on a lot in San Fran- 
cisco for street improvements should show, either by 
general or special aveiment, a compliance by the Board 
of Supervisors with all the st^s prescribed by statute 
to confer juris^diction upon the Board. — Uimmolman 
vs. Danos, 35 Cal., p. 448. 

oonditiona 467. (§ 60.) Ill pleading the performance of con- 
Kwtolbo* ditions precedent in a contract, it is not necessary to 
state the facts showing such performance, bat it may 
be stated generally that the party duly performed all 
the conditions on his part, and if such allegation be 
controverted, the party pleading must establish, on the 
trial, the fects showing such performance. 



pleaded. 



Code of Civil Procedure. 401 

Note. — If the action is on an executory contract, 
and each party has something to perform before the 
other can be placed entirely in default, the party seck- 
inff to enforce it against the other must aver in his com- 
plaint a performance or tender of performance, or a 
readiness to perform, on his part. — Barron vb. Frink, 
30 Cal., p. 486; see Mickle vs. Sanchez, 1 Cal., p. 200. 
An averment that the plaintiff had fully performed, on 
his part, all conditions of the contract, is an allegation 
of performance suflSciently explicit under this section. — 
Cal. Steam Nav. Co. vs. Wright, 6 Cal., p. 258. A 
general statement of the performance of conditions 
precedent, is sufficient in cases of contract, but, in all 
other cases, the facts showing a performance must be 
specially pleaded. If an Act of the Legislature pre- 
scribes conditions precedent on the performance of 
which title to land may be recovered, in pleading such 
title a performance of all the acts required under the 
law must be averred. — People vs. Jackson, 24 Cal., p. 
630; see, also, generally, Bensley vs. Atwill, 12 Cal., p. 
231; Gibbons vs. Scott, 15 Cal., p. 284; Himmelman 
vs. Danos, 35 Cal., p. 448. The performance of all 
conditions which are precedent to the liability of the 
defendant, whether founded upon a contract or a statute, 
must be alleged in some form, either general or special. 
In actions upon contracts a general allegation of per- 
formance of conditions precedent is under this section 
(457) of the Code sufficient. But a general allegation 
of performance of conditions prescribed by a statute 
has not been so declared, and is not, therefore, suffi- 
cient. — Himmelman vs. Danos, 35 Cal., p. 448; citing 
the cases of Dye vs. Dye, 11 Cal., p. 163; People vs. 
Jackson, 24 Cal., p. 680. 

458. Iq pleading the Statute of Limitations it is statnte of 

• Limita- 

not necessary to state the facts showing the defense, *\®°'^J^^ 
but it may be stated generally that the cause of action 

is barred by the provisions of Section (giving the 

number of the section and subdivision thereof, if it is 
80 divided, relied upon) of The Code op Civil Pro- 
cedure; and if such allegation be controverted, the 
party pleading must establish, on the trial, the facts 
showing that the cause of action is so barred. 

NoTiB. — The Commissioners say in their report that 
they introduced this section believing that a pleading 

61— Vol. I. 



402 



Code of Civil Procedure. 



Prirato 

statutes 

ho IT 

pleaded. 



Libel and 
slander, 
how stated 
in 
complaint 



Not 

necessary 
to alle^ 
or provo 
special 
damages. 



Amw er in 

»ucii uaeea. 



under it will be mure concise, And at the eame time 
will afford to the opposite party all the information 
necessary to enable him to meet the defense made. 
The utility of the section is manifest. For instance, if 
the action be for the recovery of the possession of a 
mining claim, instead of the lengthy averments myw 
required, the plea will be as follows: "Defendant 
avers that the cause of action is barred by the provis- 
ions of Sec. 320 of the Code of Civil Procedure." 

460. (§ 61.) In pleading a private statute, or a 
right derived therefrom, it is sufficient to refer to such 
statute by its title and the day of its passage. 

Note.— See Dye vs. Dye, 11 Cal., p. 163. 

460. (§ 62.) In an action for libel or slander it is 
not necessary to state in the complaint any extrinsic 
facts for the purpose of showing the application to the 
plaintiff of the defamatory matter out of which the 
cause of action arose; but it is sufficient to state, gen- 
erally, that the same was published or spoken con- 
cerning the plaintiff; and if such allegation be contro- 
verted, the plaintiff must establish on the trial that it 
was so published or spoken. 

Note. — Where the words complained of were not in . 
themselves libelous, it should be averred what the de- 
fendant intended and understood them to mean, and 
what they were understood to mean by those to whom 
they were published. And where the complaint only 
averred a libelous intent and meaning on defendant's 
part in publishing the words, yet if there was no aver^ 
ment that they were so understood by those to whom 
they were published, the complaint is defective and 
demurrable.— Maynard vs. F. F. Ins. Co., 34 Cal., p- 
57, citing many authorities, and among them the fol- 
lowing: Goodrich vs. Wolcott, 3 Co wen, p. 239; An- 
drews vs. Woodmansee, 15 "Wend., p. 234; Gibson vs. 
"Williams, 4 Wend., p. 320; Dexter